New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2005-028-562, Claim No. 108218, Motion No. M-70170


Claimant's application is Denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: James L. Gelormini, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 5, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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 calendar:

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 Exhibit 1.

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 followed.

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] [1]). 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] [1]). 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.

October 5, 2005
Albany, New York

Judge of the Court of Claims