New York State Court of Claims

New York State Court of Claims

AMADOR v. THE STATE OF NEW YORK, #2007-028-561, Claim No. 106030, Motion No. M-73085


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:
DEBEVOISE & PLIMPTON LLPBY: Christian R. Everdell, Esq.
Defendant’s attorney:

BY: Thomas G. Ramsay, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 18, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for an order restoring her claim:

1. Notice of Motion and Supporting Affirmation of Christian R. Everdell, Esq., with annexed Affidavit of Lucy Amador and memorandum of law, with annexed Exhibits;

2. Affirmation in Opposition of Thomas G. Ramsay, AAG, with annexed Exhibits; and

3. Claimant’s Reply Memorandum of Law

Filed papers: Claim; Answer; Order, filed April 24, 2006

The Claim in this action was filed, on May 6, 2002, by Claimant. At the time, she was incarcerated at Taconic Correctional Facility and represented herself pro se. The claim is based on allegations that on December 26, 2001 at Albion Correctional Facility, she was subjected to inappropriate and impermissible contact by a correction officer. She also alleges that on January 18, 2002, she was wrongfully placed in protective custody for several days until she was transferred to Taconic Correctional Facility.

In a letter dated February 10, 2006, the Chief Clerk of this Court informed Claimant that her Claim had been set down for a Calendar Call to be held March 15, 2006 (Everdell Affirmation, Exhibit D). She was advised that she could either appear in person at the Calendar Call or respond by letter, informing the Court as to whether or not she intended to continue her action. The Chief Clerk’s letter further advised that failure to either attend the Calendar Call or respond by mail “may result in the dismissal of your claim.” Claimant failed to either appear or to communicate with the Court and, consequently, Claim No. 106030 was dismissed pursuant to 22 NYCRR § 206.10, in an Order dated April 24, 2006.

Claimant, who is now represented by counsel, has moved to restore her claim. In her affidavit submitted in support of the motion, Claimant states that she was released from prison on May 17, 2002 and deported to Colombia shortly thereafter. Although she knew at the time she filed her claim that she would be released from prison and sent to Colombia later that same month, she continued to list Taconic Correctional Facility as her address, since she did not know at that time what her address in Colombia would be. She received no further communication from the Court regarding the action. In fact, she believed that the action had never been properly commenced, because there had been some confusion regarding her original filing of the Claim and she never received an acknowledgment letter regarding her second (and successful) attempt to file, in early May 2002. It was not until late 2006, when she first consulted her present counsel, that she learned the action had been commenced but subsequently dismissed, as outlined above.

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; see also CPLR 5015 [a] [1]). 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] [1]), although in some circumstances Courts have held that they have the inherent power to vacate a judgment “in the interest of justice” even after the one-year period has expired (see e.g. Molesky v Molesky, 255 AD2d 821, 822[3d Dept 1998]). 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: (1) excusable default; (2) newly-discovered evidence; (3) fraud, misrepresentation or other misconduct; (4) lack of jurisdiction; and (5) reversal, modification or vacatur of a prior judgment or order. 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 Assocs., Ltd. Partnership of Albany v Board of Assessors of City of Albany, 261 AD2d 705, 706 [3d Dept 1999]).

Under the circumstances presented here, restoration of the action is not warranted. Although Claimant’s request to restore is being made approximately one year after her action was dismissed, it must be noted that there has been no activity on her part to prosecute the claim since it was filed, in May 2002, five years ago. More fundamentally, the reason for Claimant’s failure to respond to the Chief Clerk’s February 2006 letter, and thus for her default, is clear and straightforward and rests solely on her shoulders: she failed to comply with section 206.6(f) of the Uniform Rules for the Court of Claims (22 NYCRR 206.6[f]), which requires that “[c]hanges in the post office address or telephone number of any attorney or pro se claimant therefor shall be communicated in writing to the clerk within ten days thereof.” Although she did not know the address that she would be using in the future when she filed her claim in early May 2002, she was released from prison later that month and could have informed the Court of her new address at any time during the four-year period that passed before the action was marked down for a Calendar Call. Claimant’s assertion that she took no further action because she believed that the claim had not been properly commenced may be accurate, but such belief would not have been reasonable. She was aware that the only address the Court possessed was Taconic Correctional Facility, and therefore it should have come as no surprise that she did not receive an acknowledgment letter from the Court. It was within her power to rectify the situation, and she was legally obliged to do so.

This is not, therefore, a situation in which the Court’s letter could not be received because of circumstances beyond the Claimant’s control (see e.g. Madera v State of New York, UID #2004-028-535, Claim No. 107838, Motion No. M-67839 [Ct Cl May 6, 2004], Sise, J. [Claimant was sent to a private hospital and thus did not receive a Court order sent to the correctional facility where he was formally housed]). There was no logical reason for Claimant to believe that her second attempt to file her claim had been unsuccessful; she was aware that the Court did not have her post-incarceration address and thus could not correspond with her; and the submissions before the Court present no evidence that she was prevented from contacting the Court at some time during the four-year period between May 2002 and February 2006 to verify the existence of her action and to provide her new address. Both Claimant and her counsel stress the apparent meritoriousness of her claim against the State, but this factor alone cannot warrant restoration of an action when there is no reason for a litigant’s default other than her own failure to comply with the Court’s governing regulations.

Claimant’s motion is DENIED.

July 18, 2007
Albany, New York

Judge of the Court of Claims