New York State Court of Claims

New York State Court of Claims

AFRIKA v. THE STATE OF NEW YORK, #2006-028-561, Claim No. 89872, Motion No. M-71039


: A decision and order that properly dismissed a claim as untimely in 1994 cannot be vacated, and the claim cannot be restored, pursuant to CPLR 5015(a) or the Court’s inherent discretionary power to vacate its judgments “for good cause shown.” In addition, there was no timely Notice of Intention that could be deemed a claim; section 10(9) of the Court of Claims Act has no relevance to claims for personal injury; and the time in which Claimant could have moved for permission to file an untimely claim has expired.

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:
June 12, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for an order restoring Claim No. 89872:

1. Notice of Motion and Supporting Affidavit of Free-King Afrika, pro se, with annexed Exhibits

2. Affirmation in Opposition of James L. Gelormini, AAG, with annexed exhibit

3. Reply Affidavit of Free-King Afrika, pro se

Filed papers: Claim;

Claim 89872, which Claimant now moves to restore, arose at Attica Correctional Facility on April 12, 1994. Claimant alleges that as he was waiting to proceed into the facility dining hall, he was attacked by an unknown inmate. The State’s liability for Claimant’s injuries is premised on its failure to provide him with adequate protection.

In response to the Claim, Defendant brought a pre-answer motion to dismiss, asserting that the Claim was untimely. Former Judge Edgar C. NeMoyer granted the State’s motion, finding that the Claim was filed and both the Notice of Intention and the Claim were served on the Attorney General on August 1, 1994, more than 90 days after the Claim accrued (Court of Claims Act § 10[3]) (Gelormini affirmation, Exhibit 1: unplublished decision, Claim No. 89872, Motion No. M-50303 [Ct Cl Oct. 17, 1994], NeMoyer, J.).

Claimant now moves for an order vacating that 1994 order of dismissal , alleging that it

was issued in error. Specifically, he states that his Notice of Intention “was filed with the Court of Claims long before my actual Claim was filed” (Afrika affidavit, ¶ 2). Claimant provides no

documentary evidence of this purported earlier filing, and he apparently does not dispute that the

Notice of Intention was served on the Attorney General on August 1, 1994. The Court’s records

indicate that Claimant’s Notice of Intention was also filed on that same day.[1]

Even if there had been a timely-filed Notice of Intention, however, the instant motion could not succeed. CPLR 5015 (a) authorizes a court to vacate its judgment "upon such terms as may be just,” based upon one or more of five listed grounds: (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. None of those grounds would be applicable here. In addition, courts are considered to have “inherent discretionary power to vacate [their] judgments and orders for good cause shown, not limited by the CPLR 5015 [a] list" (Siegel, NY Prac § 426, at 693 [3d ed]; see also Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Court of Claims Act § 19 [3] [“Claims 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;”] 22 NYCRR 206.15 [order dismissing a claim may be vacated by stipulation so ordered by the Court or by motion if there is “sufficient reason” for the order to be vacated and the claim restored]).

Other than orders vacating a default judgment (see e.g. Matter of Commissioner of Social Services of County of Los Angeles (Oth) v Uon, 286 AD2d 949 [4th Dept 2001]); Molesky v Molesky, 255 AD2d 821 [3d Dept 1998]), however, research has disclosed only a few, and very unusual, situations in which other types of judgment have been vacated by exercise of this power (Ladd v Stevenson, 112 NY 325 [1889] and cases citing thereto; McMahon v City of New York, 105 AD2d 101, [1st Dept 1984]). A dismissal such as occurred here, one based on a rule of law that has not been challenged and that goes to the heart of this Court’s jurisdiction to hear a claim, does not present such a situation.

Claimant’s reliance on Court of Claims Act § 10(8) is misplaced, because there was no timely served and filed Notice of Intention that could be deemed the claim in this action. Similarly, even if Court of Claims Act § 10(9) had been part of the statute at that time, he could not rely on it to argue that the cause of action did not accrue until August 1994, when he exhausted all institutional remedies, because the exhaustion requirement contained in that section applies only to claims brought by prison inmates for property loss or damage. A claim based on allegations that the State failed to protect one of its inmates from physical harm is governed by Court of Claims Act § 10(3) which, as noted, required in 1994 that a Notice of Intention or Claim be filed and served within 90 days of the claim’s accrual. Finally, defense counsel construes the instant motion to be for permission to file an untimely claim (Court of Claims Act § 10[6]). Such an application would be barred by the fact that the relevant CPLR Article 2 statute of limitations expired three years after the injury (CPLR 214]).

Inasmuch as there is no legal basis for vacating the judgment of dismissal and no other remedy is available to Claimant, Motion No. M-71039 is DENIED.

June 12, 2006
Albany, New York

Judge of the Court of Claims

[1].Prior to August 2, 1995, section 11(a) of the Court of Claims Act required that a Notice of Intention be served on the Attorney General and filed with the Court. Since that date, the statute requires only service on the Attorney General, not filing with the Court (L 1995, c 466, § 2).