1. Notice of Motion and Supporting Affidavit of Victoria Reyes, pro se,
2. Affirmation in Opposition of Thomas G. Ramsay, Assistant Attorney
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] ). 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]
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.
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.