New York State Court of Claims

New York State Court of Claims

OVERTON v. THE STATE OF NEW YORK, #2007-028-547, Claim No. 112359, Motion No. M-72774


Claimant’s motion to restore is granted. Non-receipt of a prior order, in this instance, was a reasonable possibility and constitutes an acceptable excuse for his default (CPLR 5015) and the allegations in the Claim, if proven, would state a viable cause of action against Defendant.

Case Information

1 1.The caption of this action is 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 this action is 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):
Motion number(s):
Cross-motion number(s):

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

Signature date:
May 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion to restore his claim:

1. Notice of Motion of Sean Overton, pro se; and

2. Affirmation in Opposition of Paul Volcy, AAG, with annexed Exhibits.

Filed papers: Claim; Answer; Order, dated June 5, 2006 (Sise, P.J.)

This action is based on allegations that on April 15 and 16, 2006, Claimant was subjected to inadequate and unsanitary living conditions while in custody of the Department of Correctional Services (DOCS). The Claim was filed on May 19, 2006, and it was accompanied by an application for reduction of the Court’s filing fee (CPLR 1101[f]). This application was denied by an Order, dated June 5, 2006, and Claimant was directed to pay the statutory fee of $50.00 within 120 days. If payment was not made, the Chief Clerk was directed to close the claim file without further judicial action. Claim No. 112359 was closed on November 6, 2006 on the basis of Claimant’s failure to pay the filing fee.

By the instant motion, Claimant seeks to have his claim restored, explaining that before he received the Court’s June 5, 2006 order, he was transferred from DOCS’ custody to the custody of the New York City Department of Corrections. He returned to DOCS’ custody on June 28 but states that he never received a copy of the Order directing him to pay the filing fee. Defendant opposes this motion on the grounds that Claimant failed to keep the Court informed of changes in his address (22 NYCRR § 206.6[f]) and the “questionable merits” of the underlying cause of action (Volcy Affirmation, ¶¶ 16, 17).

Court of Claims Act § 19 (3) provides that “[c]laims may be dismissed for failure to appear or prosecute or be restored to the calender for good cause shown, in the discretion of the court” (see 22 NYCRR 206.15). CPLR 5015(a) requires that a party seeking to restore an action must demonstrate 1) a reasonable excuse for the default; 2) the existence of a meritorious cause of action; and 3) lack of prejudice to the opposing party. A party may be relieved of a prior judgment or order on the ground of “excusable default” if, with certain exceptions not applicable here, a motion for this relief is made within one year after the party was served with the order or judgment (CPLR 5015 [a] [1]).

As a practical matter, it is not always possible, or necessary, for a prisoner to keep the Court informed every time he is moved from one prison, or prison system, to another. In many instances, as occurred here, the movement will only be temporary, and if this Claimant had informed the Court of his move to the New York City prison system and then of his return to DOCS 23 days later, there would have been more, rather than less, confusion and more chances that correspondence would not reach him. Whether non-receipt of a pertinent Court order constitutes an acceptable excuse for default must be determined on a case by case basis, and, in general, mere denial that the relevant document was received is insufficient (Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2d Dept 2006]). In this situation, however, where Claimant was temporarily absent from the State prison in which he was normally housed, and where he acted expeditiously after the claim file was closed, the Court accepts that his default was unintentional and further finds that there has been no significant prejudice to Defendant.

Defense counsel argues that the cause of action is not meritorious because, in connection with discovery conducted in a separate claim commenced by Claimant’s cell mate, William Hall (Claim No. 112347), it has been determined that his identical allegations – that the toilet in the cell overflowed on April 15 or 16, 2006 and the inmates were required to stay in the cell for 12 hours thereafter – have been determined to be untrue. According to counsel, a motion for summary judgment is being filed in the Hall claim (Volcy Affirmation, ¶ 7). The truth or falsity of Claimant’s allegations may be resolved in a similar fashion or at trial. It is sufficient for the purposes of this motion to determine that the allegations, if proven, would set forth a viable cause of action against the State (Cippitelli v Town of Niskayuna, 277 AD2d 540 [3d Dept 2000]).

Claimant’s motion is GRANTED, and Claim No. 112359 is restored to the active calendar. Claimant is directed, however, to pay the entire mandatory filing fee within 120 days of the filing date of this order or, once again, the Clerk of the Court is directed to close the file in this claim without further judicial action.

May 8, 2007
Albany, New York

Judge of the Court of Claims