5-8 Filed papers: Claim No. 103070, Answer; Claim No. 103264, Answer
A review of the Clerk’s file reveals that Claim Numbers 103070 and 103264
were dismissed for a trial default on June 9, 2005, when Claimant failed to
appear as scheduled for trial. [Affirmation in Opposition by Jeane L. Strickland
Smith, Exhibit 3]. These claims - originally filed in calendar year 2000 - had
been restored to the calendar by prior Decision and Order filed October 23,
2003, when Claimant asserted he never received the Order dismissing the claims.
[ibid. Exhibit 4]. Trial of the claims had been scheduled six (6) months
earlier by this Court, on January 28, 2005, when the parties were notified of
the trial date by letter. [ibid. Exhibit 2]. There is no indication
that the letter addressed to Claimant was returned, or otherwise not delivered.
In Claim Number 103070 Claimant seeks money damages for the alleged loss of
legal papers occurring at the reception center at Downstate Correctional
Facility in July 2000. In Claim Number 103264 Claimant seeks recovery for his
alleged wrongful confinement for a period of twenty-nine (29) days beyond
a Tier III disciplinary hearing disposition while an inmate at Fishkill
Correctional Facility in July 2000.
In the present motion, Claimant addresses only the substantive aspects of these
two claims, and does not at all address the default entered on June 9, 2005, or
any reasons why such default should be vacated. Indeed, in reviewing the papers
submitted Claimant refers to his failure to appear on February 21, 2002: the
first time he defaulted in appearing for trial on these claims before a
different judge. [Memorandum of Law by Richard Flowers, ¶ 8].
Court of Claims Act §19(3) provides: “Claims may be dismissed for
failure to appear or prosecute or be restored to the calendar for good cause
shown, in the discretion of the court.” See also Civil Practice Law
and Rules §5015(a). The Court Rules applicable in the Court of Claims
provide: “Whenever a note of issue has been filed and the claimant is not
ready for trial or fails to appear for a scheduled trial date, or if the
assigned judge has directed that the claim be ready for trial by a particular
date and the defendant is ready to proceed with the trial but the claimant is
not so ready, the assigned judge, upon motion by the defendant or upon his . . .
own motion, may dismiss the claim unless sufficient reason is shown why such
claim should not be tried at that time. An order dismissing a claim pursuant to
this section or any section of this Part, or pursuant to the Court of Claims Act
or the CPLR, shall not be vacated except upon stipulation of all parties so
ordered by the court or by motion on notice to all other parties, supported by
affidavit showing sufficient reason why the order should be vacated and the
claim restored. Such application shall be made to the judge who granted the
order of dismissal . . .” 22 NYCRR §206.15.
In order to vacate such a dismissal and obtain restoration of a case to the
calendar the movant must not only show that the Court abused its discretion in
dismissing the claim, but that there is sufficient reason why the order should
be vacated and the claim restored. See Shabazz v State of New
York, 191 AD2d 832 (3d Dept 1993), lv dismissed in part, denied in
part, 82 NY2d 736 (1993), rearg denied, 82 NY2d 837 (1993), cert
denied, 511 US 1094 (1994); Scheckter v State of New York, 33 AD2d
1075 (3d Dept 1970).
It is the Claimant’s continuing obligation to provide the Court with
notice of any address changes. See
22 NYCRR §206.6
With regard to the current motion,
however, it appears the Court did not send notice of the trial to the correct
address in January 2005. Accordingly, there is sufficient reason to restore the
matter, since it appears that Claimant was not notified of the trial date at the
address of record in the Office of the Chief Clerk.
Accordingly, Claimant’s motion is in all respects granted and Claims
numbered 103070 and 103264 are hereby restored to the calendar.