The following papers were read on Claimant’s motion for an order restoring
1. Notice of Motion and Supporting Affidavit of Joseph Louis, pro se;
2. Affirmation in Opposition of Reynolds E. Hahn, AAG., with annexed Exhibit;
3. Reply to Opposition
Filed papers: Claim; Answer; Order, filed March 3, 2006; Daily Report dated
August 8, 2006
This action, based on allegations that Claimant was asaulted by another inmate
at Wyoming Correctional Facility in November 2005, was initiated by a Claim
filed and served in February 2006. Along with the Claim, Claimant submitted an
application for reduction of the statutory filing fee pursuant to CPLR 1101(f).
It was determined that Claimant possessed sufficient resources to pay the $50
fee and in an Order filed March 3, 2006, the Court directed that it be paid
within 120 days. This order also provided that if the fee was not paid within
that time the Claim could be closed without further judicial action. On August
8, 2006, the Chief Clerk of the Court directed that the file in Claim No. 111988
be closed because Claimant's deadline, July 3, 2006, had passed without any
payment being made.
By this motion, Claimant seeks to have his Claim restored and to be granted
additional time in which to pay his filing fee. In his affidavit submitted in
support of the motion, Claimant describes the nature of the claim and includes
only a general request for the relief requested: restoration of the claim.
Court of Claims Act § 19 (3) provides that "[c]laims 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 22 NYCRR 206.15; see also
CPLR 5015 [a]). A party may be relieved of a prior judgment or order on the
ground of "excusable default" if a motion for this relief is made within one
year after the party was served with the order or judgment (CPLR 5015 [a]
CPLR 5015 (a) authorizes a court to vacate its judgment "upon such terms as may
be just" on motion of any interested party with such notice as the court may
direct, based upon five listed grounds. Moreover, "[t]he court has inherent
discretionary power to vacate its judgments and orders for good cause shown, not
limited by the CPLR 5015 [a] list" (Siegel NY Prac § 426, at 693 [3d ed]).
In seeking to restore an action on the ground of excusable default, a moving
party must demonstrate: (1) a reasonable excuse for the default, (2) the
existence of a meritorious cause, and (3) lack of prejudice to the opposing
party caused by the delay (see e.g. Cippitelli v Town of Niskayuna, 277
AD2d 540 [3d Dept 2000]; Matter of Twin Towers Assoc., Ltd. Partnership of
Albany v Board of Assessors of City of Albany, 261 AD2d 705, 706 [3d Dept
1999]). Claimant has failed to address any of these factors, and there is
nothing else to support his instant application.
Claimant’s motion is DENIED.
In the instant case, the Court accepts that Claimant's default was not
intentional. On the other hand, it does not appear that Defendant would be
prejudiced if the requested relief were granted, and defense counsel makes no
claim of potential prejudice.
Claimant does not address the second factor, the underlying merit of the claim,
and as this Court has ruled in other situations, that failure alone compels
denial of the motion to restore (Muhammad v State of New York, Claim No.
106070, Motion No. M-66187, March 7, 2003, Sise, J., UID #2003-028-518, citing
to Matter of Twin Towers Assoc., Ltd. Partnership of Albany v Board of
Assessors of City of Albany, 261 AD2d 705 [3d Dept 1999] and Watkins v
Clark, 260 AD2d 843 [3d Dept 1999]; see also Kumar v Yonkers Contr. Co.,
Inc., 14 AD3d 493 [2d Dept 2005]; Carr v Decesare, 280 AD2d 852, 853
[3d Dept 2001] ["The vacatur of a default where there is a failure to establish
either a reasonable excuse or a meritorious defense or cause of action has been
held to be an improvident exercise of discretion."]).
Claimant's motion is denied, without prejudice to a subsequent motion, on
proper papers, seeking the same relief.