New York State Court of Claims

New York State Court of Claims

MUNGIN v. THE STATE OF NEW YORK, #2006-028-589, Claim Nos. 105661, 106036, Motion No. M-71669


Motion to restore claims dismissed on Claimant’s default is denied. Motion is untimely; no reasonable excuse for default is given; and the claim based on allegations of food poisoning is of questionable merit.

Case Information

1 1.The caption of these actions are amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of these actions are amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105661, 106036
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 17, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for an order restoring Claim No. 105661 and Claim No. 106036:

1. Notice of Motion and Supporting Affidavit of Adrian Mungin, pro se

2. Letter of opposition of Paul F. Cagino, AAG

Filed papers: Claims (2); Answers (2)

This motion relates to two claims that were dismissed following a Calendar Call. Claim No. 105661 is alleged to have accrued at Mt. McGregor Correctional Facility on July 17, 2001. The entire substantive portion of the Claim reads as follows: “I was food pousig [sic] from the facility food at Mt. McGregor.” Claim No. 106036 also accrued at Mt. McGregor Correctional Facility, on April 20, 2002. Claimant alleges that he was on the facility grounds when, after being told by a correction officer to “get out the way” while the officer backed a truck into a certain location, he was struck by the truck’s side view mirror.

Both claims were dismissed when there was neither an appearance, nor communication in response to the Court’s letter, dated February 9, 2005, setting the claims down for a Calendar Call to be held March 11, 2005. This letter stated, in pertinent part, that the calendar call was to “ascertain whether or not you intend to continue your action.” He was further informed that he could either appear at the calendar call or respond by letter but that failure to respond by mail or to appear at the Calendar Call “may result in the dismissal of your claim.” The letter was signed by the Chief Clerk and the letterhead, of course, contained the Court’s mailing address. Claimant has now moved for an order restoring both claims, stating that he was “never informed or made aware that I was required to make a response, reply, etc. to what ever was supposed to have taken place at the March 2005 Court’s Calendar Call” and, further, that it was his belief that “at some point I was assigned an attorney” and thus cannot understand why the attorney did not take appropriate action with respect to the Calendar Call. In response to the motion, defense counsel has submitted a letter opposing the requested relief on the ground that Claimant failed to provide “sufficient reasons why the claims should be re-opened.”

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; 22 NYCRR § 206.15; CPLR 5015[a][1]), although in some circumstances, 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, 822 [3d Dept 1998]). A party seeking to vacate a default must demonstrate a reasonable excuse for its default and a meritorious cause of action (see e.g. Cippitelli v Town of Niskayuna, 277 AD2d 540, 541 [3d Dept 2000]).

Claimant waited over a year since the dismissal before seeking to have his claims restored. He does not deny that he received the letter fixing the March 2005 Calendar Call, and although he asserts that he did not understand he was to make any response, the letter’s directions are very clear and have been understood readily by many other pro se litigants, some less articulate in their writing than Claimant. In addition to the lateness of his application and the lack of any reasonable excuse for default, the cause of action set forth in Claim No. 105661 is of questionable merit. Food poisoning, while extremely unpleasant, is not always the result of negligence on the part of the preparer (Annotation: Liability for Injury or Death Allegedly Caused by Spoilage, Contamination, or Other Deleterious Condition of Food or Food Product, 2 ALR5th 1, 39, § 2 [b]; 36A CJS Food § 57; McMoore v State of New York, Claim No. 90481, Ct Cl [October 2, 2000 Sise, J.], UID #2000-028-0007; Decision, Gray v State of New York and Eldridge v State of New York, Claims No. 90995 and 91203, filed March 13, 1996, King, J.,).

For the reasons set forth above, Claimant’s motion is DENIED.

October 17, 2006
Albany, New York

Judge of the Court of Claims