New York State Court of Claims

New York State Court of Claims

REYES v. THE STATE OF NEW YORK, #2006-028-523, Claim No. 110326, Motion No. M-70839


Motion to restore a claim that was closed for non-payment of the filing fee is denied because Claimant failed to address the merit of her claim.

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: Thomas G. Ramsay, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 9, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for an order restoring her claim and granting additional time in which to pay the statutory filing fee:

1. Notice of Motion and Supporting Affidavit of Victoria Reyes, pro se, and

2. Affirmation in Opposition of Thomas G. Ramsay, Assistant Attorney General.

Filed papers: Claim - Answer

In an action commenced January 2005, Claimant sought money damages for personal injury suffered at Albion Correctional Facility, where she was incarcerated. Claimant alleged that she broke a finger in November 2004 and had not been given adequate medical treatment for that condition up to and including the date the Claim was filed and served.

Along with her Claim, Claimant submitted an application for reduction of the statutory filing fee pursuant to CPLR 1101(f). It was determined that Claimant possessed sufficient resources to pay the $50 fee and directed that it be paid within 120 days of the order filed January 21, 2005. The order also provided that if the fee was not paid within that time the Claim could be closed without further judicial action. On June 20, 2005, the Chief Clerk of the Court directed that the file in Claim No. 110326 be closed because Claimant's deadline, May 21, 2005, had passed without any payment being made.

By this motion, Claimant seeks to have her Claim restored and to be granted additional time in which to pay her filing fee. She states that, following denial of her application for a reduction of the fee, she relied on her family to pay the filing fee, but "[u]nfortunately, her family forgot about it and never sent a check or money order" (Reyes affidavit, ¶ 6). On July 8, 2005, shortly after receiving notification that the claim file had been closed, Claimant mailed a $50.00 money order to the Court, apparently assuming that that would serve to restore the Claim. She was informed by a letter from the Court's Acting Chief Clerk that applying for restoration of a claim requires a formal motion. This motion ensued.

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" 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]).[1]

CPLR 5015 (a) authorizes a court to vacate its judgment "upon such terms as may be just" on motion of any interested party with such notice as the court may direct, based upon five listed grounds.[2] Moreover, "[t]he court has inherent discretionary power to vacate its judgments and orders for good cause shown, not limited by the CPLR 5015 [a] list" (Siegel NY Prac § 426, at 693 [3d ed]).

In seeking to restore an action on the ground of excusable default, a moving party must demonstrate: (1) a reasonable excuse for the default, (2) the existence of a meritorious cause, and (3) lack of prejudice to the opposing party caused by the delay (see e.g. Cippitelli v Town of Niskayuna, 277 AD2d 540 [3d Dept 2000]; Matter of Twin Towers Assocs., Ltd. Partnership of Albany v Board of Assessors of City of Albany, 261 AD2d 705, 706 [3d Dept 1999]). In the instant case, the Court accepts that Claimant's default was not intentional but must question whether relying on family members to pay the fee for her, apparently without following through to see that they did so, is a reasonable course of action to take. On the other hand, it does not appear that Defendant would be prejudiced if the requested relief were granted, and defense counsel makes no claim of potential prejudice.

Claimant does not address the second factor, the underlying merit of the claim, and as this Court has ruled in other situations, that failure alone compels denial of the motion to restore (Muhammad v State of New York, Claim No. 106070, Motion No. M-66187, March 7, 2003, Sise, J., UID #2003-028-518, citing to Matter of Twin Towers Associates, Ltd. Partnership of Albany v Board of Assessors of City of Albany, 261 AD2d 705 [3d Dept 1999] and Watkins v Clark, 260 AD2d 843 [3d Dept 1999]; see also Kumar v Yonkers Contracting Co., Inc., 14 AD3d 493 [2d Dept 2005]; Carr v Decesare, 280 AD2d 852, 853 [3d Dept 2001] ["The vacatur of a default where there is a failure to establish either a reasonable excuse or a meritorious defense or cause of action has been held to be an improvident exercise of discretion."]).

Claimant's motion is denied, without prejudice to a subsequent motion, on proper papers, seeking the same relief.

March 9, 2006
Albany, New York

Judge of the Court of Claims

[1] Although Claimant's motion was made less than a year after the claim was closed, it should be noted that some Courts have held that, in certain 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 [3d Dept 1998]).
[2] These grounds are (1) excusable default; (2) newly-discovered evidence; (3) fraud, misrepresentation or other misconduct; (4) lack of jurisdiction; and (5) reversal, modification or vacatur of a prior judgment or order. At issue here is the first one, excusable default.