New York State Court of Claims

New York State Court of Claims

RUSTON v. THE STATE OF NEW YORK, #2006-028-567, Claim No. 103612, Motion No. M-71190


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: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on a motion for an order vacating a prior order and restoration of a claim:

1. Notice of Motion and Supporting Affidavit of Kevin F. Guyette, Esq

2. Affirmation in Opposition of Joseph F. Romani, Esq., with annexed Exhibits

Filed papers: Claim; Answer; Order, filed March 19, 2002 (Read, P.J.)

On January 2, 2001, Claimant, who was appearing pro se at the time, filed with the Court his Claim and an application to proceed as a poor person in prosecution of the Claim. In the Claim, he alleged that on November 26, 1999,[1] at the gym (field house) of Elmira Correctional Facility, he was assaulted by another inmate, identified as Sean Lewis. He alleged that he had repeatedly asked for help from correction officials, telling them of problems and threats being made in C-Block of the facility (Claim, ¶ 3). He also alleged that he asked for protective custody but was refused (id.). The assault, he stated, occurred less than 30 feet away from the officers’ central command post, which was unmanned. Attached to the Claim was a diagram of the field house; photocopies establishing the January 18, 2000 receipt by the Attorney General of correspondence sent by certified mail, return receipt requested; and a copy of one page of Claimant’s Ambulatory Health Record for November 26 and December 3, 1999.

Issue was joined on February 5, 2001. The following month, Claimant wrote to the Court, giving his new address as Queensboro Correctional Facility, in Long Island City, New York. One month later, on April 11, 2001, the Court received a letter from attorney Kevin F. Guyette, referencing Claim No. 103612 and stating that Assistant Attorney General James E. Shoemaker had agreed to his request for an extension of time to respond to Defendant’s demand for a bill of particulars and discovery demand. No Notice of Appearance had been filed with the Court by Mr. Guyette, however.

The Court’s file contains nothing further until January 15, 2002, when a letter was sent to Claimant, at Queensboro Correctional Facility, informing him of a Calendar Call that was to be held on February 21, 2002. In the letter, Claimant was informed that the purpose of the calendar call was to “ascertain whether or not you intend to continue your action,” and he was further informed that he could either appear at the calendar call or respond by letter. Finally, Claimant was informed that failure to respond by mail or to appear at the Calendar Call “may result in the dismissal of your claim.” As there was no communication from or appearance by Claimant or attorney Guyette, on March 19, 2002, former Presiding Judge Susan Phillips Read signed an order granting the State’s motion to dismiss the Claim.

Two years later, on March 12, 2004, attorney Guyette wrote to the Chief Clerk to request that the Claim be reopened. Attached to the letter were copies of Mr. Guyette’s April 9, 2001 correspondence to the Court; a Notice of Entry of Decision and Order sent to Mr. Guyette by the Assistant Attorney General;[2] and a May 8, 2003 cover letter from a paralegal in Mr. Guyette’s office to the Assistant Attorney General conveying the Verified Bill of Particulars and response to the Demand for Discovery. These documents, Mr. Guyette stated, “indicates the State knew that I was representing Mr. Rushton.” In response to this letter, Mr. Guyette was informed by a Senior Court Attorney that no Notice of Appearance on behalf of Claimant had ever been filed with the Court and that restoration of a Claim must be sought by formal motion. The Court’s letter was dated March 31, 2004.

Almost two years passed before the instant motion was made. In support of the motion, Mr. Guyette has attached some of the documents described above, which had also been sent as attachments to his March 2004 letter to the Court, and states: “Despite the Court and defense counsel’s awareness that I was representing the claimant, I did not receive notice of the Calendar Call and I did not receive any notice of defense counsel’s Motion for Dismissal. I neither had an opportunity to appear in court nor an opportunity to be heard in opposition to defendant’s motion.”

In opposition to this motion, counsel for Defendant has submitted copies of all of the correspondence relating to this claim in the records of the Department of Law. These documents reveal no reference to an attorney appearing for Claimant until March 26, 2001, when Claimant wrote to AAG Shoemaker saying that “I have a[n] attorney looking [at] my claim right now” and giving Mr. Guyette’s address and telephone number (Romani affirmation, Exhibit H). Thereafter, the Attorney General received the April 9, 2001 letter from Mr. Guyette asking for an extension of time to May 7, 2001 to respond to discovery demands and, two years later, the May 8, 2003 Bill of Particulars and discovery responses were received.

In most circumstances, a motion to restore a claim must be made within one year of the service of an order or judgment of dismissal (Court of Claims Act § 19(3); 22 NYCRR § 206.15; CPLR 5015[a]). In some circumstances, however, Courts have held that they have the 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). From the chronology set forth above and contained in Defendant’s responsive papers, it would appear that neither Claimant nor Mr. Guyette received a copy of Judge Read’s order until May 14, 2003, when the latter received a faxed copy from the Attorney General. Notwithstanding this delay in receipt of the Court’s Order, the instant motion was filed more than two and one-half years after that receipt.

A party seeking to vacate a default must demonstrate a reasonable excuse for its default in appearing on the motion and a meritorious cause of action (see e.g. Cippitelli v Town of Niskayuna, 277 AD2d 540, 541). The excuse for this default, the attorney’s failure to file a notice of appearance with the Court and formally notify it of Claimant’s representation, is neither reasonable nor acceptable (G.E. Capital Mortg. Services, Inc. v Holbrooks,

245 AD2d 170 [1st Dept 1997] [confusion generated by substitution of attorneys was an inadequate excuse for defendant's default]). While law office failure no longer precludes relief from a default as a matter of law (CPLR 2005), it can nevertheless be an improvident exercise of discretion to relieve a party’s default in some instances, where there have been extended delays and noncompliance with orders or deadlines (Gass v Gass, 101 AD2d 849 [2d Dept 1984]; Shumalski v Government Employees Ins. Co., 80 AD2d 975, 976 [3d Dept 1981]). Furthermore, and unfortunately in this case, until there has been a formal notice of appearance, the attorney of record (here, Claimant himself) must answer and be responsible for an action and for the failure of others to act (Loomis v Sebasta, 43 AD2d 877 [3d Dept 1974]).

In view of the inordinate delay in seeking to restore this claim, and the lack of an acceptable excuse for the default that lead to its dismissal, the motion is DENIED.

July 21, 2006
Albany, New York

Judge of the Court of Claims

[1]. The year is not expressly stated but Claimant also alleged that he served a Notice of Intention on the Attorney General on January 7, 2000, within 90 days of the date his claim accrued.
[2]. This notice of entry relates to the Decision and Order on Motion No. M-63103, issued April 6, 2001 by former Court of Claims Judge Ferris D. Lebous, which denied Claimant’s motion to proceed as a poor person and for assignment of counsel. On the Decision and Order, Claimant is listed as having appeared pro se.