New York State Court of Claims

New York State Court of Claims

VILLANUEVA v. THE STATE OF NEW YORK , #2007-028-518, Claim No. 105781, Motion No. M-72339


Motion to vacate default and restore claim (CPLR 5015) is denied because there is no reasonable excuse for the default or for the delay in seeking restoration.

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: G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 18, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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

1. Notice of Motion and Supporting Statement, of Miguel Villanueva, pro se, with annexed Exhibits;

2. Affirmation in Opposition of G. Lawrence Dillon, AAG; and

3. Response of Miguel Villanueva, pro se.

Filed papers: Claim; Answer; miscellaneous correspondence; Order filed, April 5, 2002, Read, P.J.; Daily Report dated, September 19, 2002

The events giving rise to this claim began in February 1998, when Claimant was received into the State prison system. He alleges that the medical staff in the several facilities where he was housed provided inadequate treatment and care for his right foot, which had been seriously injured some time before. The detailed allegations contained in the Claim cover the period from February 1998 to November 2001, and the Claim was filed with the Clerk of the Court on March 20, 2002.

At the time he filed his Claim, Claimant also made application pursuant to CPLR 1101(f) for a reduction in the Court of Claims filing fee. In an Order filed April 5, 2002, former Presiding Judge Susan Phillips Read ruled that Claimant had sufficient resources to pay the statutory $50.00 fee and denied the application. This Order also provided that if Claimant failed to pay the entire fee within 120 days of the date of the Order, the Clerk of the Court was to close the file without further judicial action. Claimant failed to pay the filing fee and the claim file was closed pursuant to a Daily Report dated September 19, 2002.

The Daily Report closing the claim file was mailed to Claimant at the following address: Soundview Station, PO Box 590, Bronx, New York 10472. This was the address that Claimant had provided to the Clerk of the Court in a letter dated May 19, 2002, in which he stated that the address “can be used to mail me any responses in regards to my claim.” The Court’s file contains no further correspondence from Claimant until a letter received June 7, 2006, in which Claimant, who was at that time incarcerated at Greene Correctional Facility on parole violation, inquired as to the status of his claim. In this letter he stated that he had attempted to write the Court on several occasions but may have directed those letters to the New York City Court of Claims. By letter dated June 8, 2006, the Court’s Senior Court Attorney advised Claimant that the claim was closed and provided another copy of the Daily Report.

Claimant has now moved for an order restoring his claim, which the Court accepts as a motion to vacate a prior order on the ground of excusable default, pursuant to CPLR 5015(a)(1). In support of the motion he states that, following his release from Hale Creek Correctional Facility on April 15, 2002, any mail forwarded to him was not received. He speculates that mail addressed to 51 Saint Felix Street, Brooklyn, NY may not have been delivered because the primary resident at that location was an aunt who was using her maiden name, Arroyo, rather than the name he had given to the Division of Parole, Norma Fontanez (Villanueva statement, ¶ 3).[1] Claimant also indicates that his mother is willing to assist in paying the full filing fee if the claim is restored. Claimant makes no reference to the Soundview Station address or to his letter to the Clerk advising that that address should be used for correspondence regarding the claim.

The applicable statutes and regulations expressly require that such a motion must be brought within one year from dismissal of the action (CPLR 5015[a]; Court of Claims Act § 19; 22 NYCRR § 206.15),[2] although courts have held that, in certain circumstances, they have an inherent power to vacate a judgment or order "in the interest of justice" even after the one-year period has expired (Molesky v Molesky, 255 AD2d 821 [3d Dept 1998]; see e.g. Machnick Bldrs., Ltd. v Grand Union Co., 52 AD2d 655 [3d Dept 1976][party had a meritorious defense and the reason for default was attorney’s physical and mental handicap and unauthorized action]; Michaud v Loblaws, Inc., 36 AD2d 1013 [4th Dept 1971] [defaulting party had meritorious defense, had believed that it had an extension of time in which to answer, and acted promptly upon learning default had been entered]). In either case, the moving party must establish that they have a reasonable excuse for the default and a meritorious cause of action (Cippitelli v Town of Niskayuna, 277 AD2d 540, 541 [3d Dept 2000]; Blumberg v State of New York, 208 AD2d 581 [2d Dept 1994]). In addition, courts are to inquire into the reasons for any delay in moving to vacate the default (City of Albany Indus. Dev. Agency v Garg, 250 AD2d 991 [3d Dept 1998]). In the instant case, even if the Court were willing to accept that there may be substantive merit to the cause of action, Claimant has waited over four years to seek restoration of his claim, with no excusable reason for such delay, and he does not have any justifiable excuse for the original default. When he filed his claim, he was aware that it was necessary to pay a filing fee, as he applied for waiver or reduction of that fee. The April 5, 2002 Order denying his application was undoubtedly sent to his original address, Hale Creek Correctional Facility, which he left on April 15. Even if he did not receive that order, he subsequently provided the Clerk of the Court with a new address and the Daily Report closing his claim was sent to that address. Claimant provides no reason why he might not have received it at that address and, in any event, it is a litigant’s responsibility to keep the Court informed of any address changes (22 NYCRR § 206.6[f]).

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

January 18, 2007
Albany, New York

Judge of the Court of Claims

[1]. Defendant State of New York initially directed all communication to the 51 Saint Felix Street address in care of Norma Fontanez, and counsel notes that none of the mail was ever returned. On May 24, 2002, Defendant served a second copy of the Answer and discovery demands to the Southview Station address and filed an Affidavit of Service with the Clerk of the Court.
[2]. Neither Court of Claims Act § 19 nor Rule 206.15 is inconsistent with the provisions of CPLR 5015 and consequently, through operation of Court of Claims Act § 9 (9), the CPLR provision also governs motions to vacate prior orders or judgments of this court (see e.g. Welch v State of New York, 261 AD2d 537 [2d Dept 1999]; Amodeo v State of New York, 257 AD2d 748 [3d Dept 1999]).