The following papers were read and considered on Claimant's motion for an order
to vacate a prior order dismissing the Claim and to restore it to the Court's
1. Notice of Motion and Supporting Affidavit of Rafael Rivera (Rivera
Affidavit) filed May 16, 2005, with Annexed Exhibits;
2. Affirmation in Opposition of Assistant Attorney General James L.
Gelormini (Gelormini Affirmation) filed June 15, 2005 with annexed
Filed Papers: Claim and Verified Answer.
The Court informed Claimant by letter mailed on February 9, 2005 that his Claim
would be called at an upcoming calendar call to be held on March 11, 2005. That
particular calendar call is commonly referred to as the "out of custody"
calendar. Claimant was advised to either notify the Court by mail of his
intention to continue the action or to be present at the Court on March 11,
2005. Failure to reply, or appear, he was warned, might result in the dismissal
of his claims. Claimant did not respond to the letter nor did he appear at the
calendar call and, accordingly, Defendant State of New York ("Defendant" or "the
State") moved for dismissal pursuant to 22 NYCRR 206.10. By order filed March
24, 2005, the Court granted the State's motion and dismissed the Claim for
Claimant's failure to appear (Rivera v State of New York, Ct Cl,
unreported order filed March 24, 2005, Sise, P. J., Claim Nos. 108218).
In April, 2005, in response to a letter from Claimant, the Court advised
Claimant in writing that his Claim had been dismissed. The instant motion
Court of Claims Act § 19 (3) provides that "[c]laims may be dismissed for
failure to appear or prosecute or be restored to the calender for good cause
shown, in the discretion of the court" (see 22 NYCRR 206.15; see
also CPLR 5015 [a] ). A party may be relieved of a prior judgment or
order on the ground of "excusable default" only if a motion for this relief is
made within one year after the party was served with the order or judgment (CPLR
5015 [a] ). Courts have held that, in some circumstances, they have an
inherent power to vacate a judgment "in the interest of justice" even after the
one year period has expired (see e.g. Molesky v Molesky, 255 AD2d 821).
Here, Claimant has timely made his application to vacate his default judgment
prior to the expiration of the one year period. As such, the Court exercises
its discretion to consider the application.
Initially, and as correctly noted by the Defendant in Opposition (Gelormini
Affirmation ¶ 4), Claimant's papers are largely unintelligible - a
hodgepodge of non sequitur allegations, citations and attachments. Nowhere in
this submission does Claimant address his failure to appear or the merits of his
Claim. Accordingly, and not withstanding the Court's preference to have Claims
resolved upon the merits (see Heinrichs v City of Albany, 239 AD2d
639, 640), the application must be denied.
The Court further notes that were it to consider the merits of the application,
the result would be the same. The requirements set forth in Court of Claims
Act §11 are jurisdictional in nature and, as such, must be strictly
construed (see Finnerty v New York State Thruway Auth., 75 NY2d
721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d
687; see also Lichtenstein v State of New York, 93 NY2d 911,
912-913 [applying same principles to requirements of Court of Claims Act §
10]). The Court is not free to temper application of a rule of law, whether
done in the exercise of discretion, equity or because there is no prejudice and
a harsh result will be avoided (see Martin v State of New York, 185 Misc
2d 799, 804-805, collecting cases). Defendant has submitted proof that the
Court would lack jurisdiction over the Claim as service of same was made by
ordinary first class mail (Gelormini Affirmation ¶ 5) in
contravention of Court of Claims Act § 11 (a) (see Dreger v New York
State Thruway Authority, 81 NY2d 721; Negron v State of New York, 257
AD2d 652; Philippe v State of New York, 248 AD2d 827).
Accordingly, Motion No. M-70170 is DENIED in its entirety.