New York State Court of Claims

New York State Court of Claims

COCHRAN v. THE STATE OF NEW YORK, #2007-028-511, Claim No. 100646, Motion No. M-72287


Motion to restore (CPLR 5015) is denied. Although Claimant had a reasonable excuse for his default and the cause of action appears to be meritorious, the Claim was improperly served and would have to be dismissed in any event.

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: Geoffrey B. Rossi, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 12, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion to vacate prior order dismissing his claim:

1. Notice of Motion of Steven G. Cochran, pro se

2. Affirmation in Opposition of Geoffrey B. Rossi, AAG, with annexed Exhibits

Filed papers: Claim; Answer; miscellaneous correspondence; Decision and Order, Claim No. 100646, May 13, 2005, Lebous, J.

This action, which arose at Southport Correctional Facility in May 1999, is based on allegations that Claimant, while an inmate of that facility, was not given proper training or equipment for the work that he was assigned to perform in the facility meshall. As a consequence, his hands were damaged and became discolored.

The Claim was filed on July 2, 1999, and issue was joined on August 30, 1999. Thereafter, Claimant frequently communicated with the Clerk of the Court to inquire about the status of his claim (see letters dated November 16, 2001; March 2002; telephone call of July 16, 2003) or to both inquire about the status and to inform the Clerk of the Court when his address changed (see letters dated November 6, 2000; July 1, 2001; December 3, 2002). In March 2004, after Claimant had been released from custody, he was notified of a Calendar Call that was to be held in Albany, New York; he promptly responded, in writing, that he wished to continue his claim. On December 9, 2004, Claimant again wrote to inform the Clerk of the Court that he was housed, for the time being, at Rensselaer County Jail.

In the meantime, the claim had been transferred to the IAS calendar of former Court of Claims Judge Ferris D. Lebous. On January 28, 2005, a letter was sent to Claimant scheduling a calendar call appearance for April 5, 2005. When Claimant failed to communicate with the Court or to appear on the designated day, his claim was dismissed pursuant to Rule 206.10(g) of the Uniform Rules for the Court of Claims (22 NYCRR § 206.10[g]). When Claimant wrote to the Clerk of the Court on June 27, 2005 to report that he was housed in Altona Correctional Facility, however, the response from the Clerk’s Office merely acknowledged the change of address.

In June 2006, Claimant again wrote to the Clerk of the Court to inquire into the status of his action and to indicate another anticipated change in his address. This time in the reply sent from the Chief Clerk’s office, he was informed that his claim had been dismissed the year before. He immediately by letter wrote back, received on June 26, 2006, protesting and stating that the claim had been dismissed without his knowledge; that he had written to the Chief Clerk to say he wanted to attend the April 5, 2005 calendar call; and that there had been no mention of the dismissal when he corresponded with the Clerk of the Court in June 2005. Claimant was told that it would be necessary for him to bring a motion to formally request restoration, and the instant motion ensued.

In his affidavit in support of the motion, Claimant again asserts that while he was housed at Rensselaer County Jail he received notification of the April 5, 2005 calendar call and responded, in writing, to say that he wished to pursue his claim and to attend the calendar call. In addition, because he was incarcerated at the time, he requested that the Court issue an order requiring that he be produced for the calendar call. Although the Court’s file does not contain any such communication, in light of the diligence with which Claimant has pursued this action throughout, the Court is willing to accept that he did, in fact, send such a response. Whether the letter was not sent from the jail or misfiled when it arrived at the Court is of no moment. The copy of the Decision and Order, with notice of entry, that was served by Defendant was sent to Claimant’s previous address, not to the County Jail where he resided at the time (Rossi Affirmation, Exhibit A).

By this motion, Claimant seeks to vacate the Court’s order of dismissal and restore the claim to the active calendar on grounds of excusable default (CPLR 5015[a][1]). As a general proposition, such a motion is to be brought within the one-year time period following dismissal of the action (Court of Claims Act § 19; 22 NYCRR § 206.15; CPLR 5015[a][1]). Here, however, it is evident that Claimant was not aware of the dismissal until June 2006, more than a year after it occurred, and thus this motion is not untimely.

A party seeking to vacate a default must demonstrate that she or he had a reasonable excuse for the default and that the claim sets forth a meritorious cause of action (see e.g. Cippitelli v Town of Niskayuna, 277 AD2d 540, 541). As indicated above, Claimant has a reasonable excuse for his default in the apparent non-delivery of his response to the communication regarding the April 2005 calendar call. Furthermore, the Court is willing to accept that the cause of action being asserted by Claimant has substantive merit. It is certainly not frivolous on its face and, again, the diligence with which Claimant has pursued the action suggests that at least he believes it to have merit. Substantive merit is not the only consideration, however, where, as here, the opposing party establishes that the claim is jurisdictionally defective. In order to have a default vacated, the party against whom the default was entered must be able to show that it has a viable cause of action or defense (Matter of Burns v Carriere-Knapp, 278 AD2d 542, 544 [3d Dept 2000]).

As indicated above, the events giving rise to this action occurred in May 1999, and the Claim was filed with the Court on July 2, 1999. The Claim was served on the Attorney General on July 26, 1999 (Rossi Affirmation, Exhibit B), but, according to defense counsel, it was served by regular mail, not personally or by certified mail, return receipt requested, as required by section 11(a) of the Court of Claims Act. In its Answer, Defendant raised improper service of the Claim as its third affirmative defense, with sufficient particularity to satisfy the pleading requirements of section 11(c) of the Court of Claims Act. As proof of the defense, Counsel for Defendant has provided a photocopy of the envelope in which the Claim was received by the Attorney General (id.), establishing that regular mail postage was used. Claimant has not challenged the truth of Defendant’s statement regarding service.

Consequently, although Claimant has a reasonable excuse for his default and his cause of action has apparent substantive merit, it would be an exercise in futility to permit restoration of the claim. The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [3d Dept 2000]), and a Claimant’s failure to serve a copy of the claim on the Attorney General personally or by certified mail, return receipt requested is a fatal jurisdictional defect that deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). The Court has no authority to temper application of these requirements even to avoid a harsh result.

For this reason, Claimant’s motion is DENIED.

January 12, 2007
Albany, New York

Judge of the Court of Claims