New York State Court of Claims

New York State Court of Claims

PIPER v. THE STATE OF NEW YORK, #2007-028-579, Claim No. 107008, Motion No. M-73763


Motion to vacate dismissal of a claim on the ground of excusable default (CPLR 5015, 22 NYCRR § 206.15) is denied. Claimant’s failure to notify his attorney of new address caused the default and thus there is not reasonable excuse. In addition, the legal merit of the underlying claim is questionable.

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:
BY: PANKEN, BESTERMAN, WINER, BECKER & SHERMAN, LLPBY: Howard B. Sherman, Esq., of Counsel.
Defendant’s attorney:
BY: Joseph L. Paterno, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 17, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant’s motion for an order vacating the dismissal of this action:

1. Notice of Motion and Supporting Affirmation of Howard B. Sherman, Esq., with annexed Affidavit of Derrick Piper and annexed Exhibits;

2. Affirmation in Opposition of Joseph L. Paterno, AAG, with annexed Exhibits; and

3. Reply Affirmation of Howard B. Sherman, Esq.

Filed papers: Claim; Answer

This action arose on June 11, 2002, at Arthur Kill Correctional Facility, when claimant tripped and fell, allegedly on a defective area of the facility’s basketball court, and injured his hand. Claimant pro se served a notice of intention to file a claim and then retained the services of attorney Robert W. Nishman, who served a claim on the Attorney General on November 27, 2002 (Sherman Affirmation, Exhibit B), and filed it with the Court two days later.

The matter was set down for trial three and a half years later, on June 27, 2006. On that date, Claimant’s counsel[1] appeared and stated that he had been unable to locate his client. An adjournment was granted and trial rescheduled for September 7, 2006. Claimant’s counsel was able to contact his client at least once after that, and so claimant knew about the new trial date; on August 28, 2006, however, counsel wrote that he was once again unable to locate his client and therefore could not proceed with the trial (Paterno affirmation, Exhibit A [Letter from claimant’s counsel to the Court]).

Claim 107008 was then dismissed, without prejudice, by an order filed October 13, 2006. This order stated that any effort to vacate the dismissal would have to comply with Rule 206.15 of the Uniform Rules for the Court of Claims (22 NYCRR § 206.15) (Sherman Affirmation, Exhibit D). Rule 206.15 provides that claims may be restored on stipulation by the parties, approved by the Court, or by motion showing “sufficient reason” for the restoration. Also relevant are the provisions of CPLR 5015, which provide that a party may be relieved of a prior judgment or order on several grounds, including "excusable default." An order may be vacated on this ground if the motion is made within one year after the party was served with the order or judgment and the party is able to demonstrate both a reasonable excuse for the default and the existence of a meritorious cause of action. Also to be considered is whether the default was willful and whether the opposing party was prejudiced by the delay (Mothon v ITT Hartford Group, 301 AD2d 999 [3d Dept 2003]; 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]).

This motion was commenced within a year of the claim’s dismissal. As to the reason for the default, claimant acknowledges that he failed to keep his attorney informed of his changes of address. He goes on to recount the many changes in his life during the relevant time period. Claimant was incarcerated when this action was commenced, but subsequently released and went to a half-way house in Brooklyn. On June 20, 2006, claimant was arrested on a new charge and sent to Riker’s Island, a correctional facility operated by the City of New York. He remained there only a week, but when he was released on June 27, 2006, he was denied readmission to the half-way house and unable to find other housing. Claimant then resumed using illegal drugs and, as a consequence, was found guilty of parole violation. He was then confined in the Willard Drug Treatment facility and states that it was during this time that he lost contact with his attorney. Claimant was released from Willard, on May 22, 2007, and since that date has been residing with his mother in the Bronx, “attempting to lead a productive life” (Piper affidavit, page 2).

One could argue that claimant would have had a reasonable excuse for failing to appear at the original, June 27, 2006 trial. It is certain that he did not plan to be arrested the week before, and on the day he would have to be at trial, he was released from Riker’s Island but refused re-admittance to his half-way house. With respect to the second trial date, September 7, 2006, the date on which the actual default occurred, claimant does not have such an excuse. It is not clear from his affidavit precisely where claimant was on that date, because he does not give the date on which his parole was violated and he was sent to Willard. Either he was not yet incarcerated, in which case there is no explanation why he could not attend trial, or he had already been sent to Willard, in which case he simply failed to inform his attorney of his new location.

Attorneys and pro se claimants have a duty to keep the Court apprised of their address within ten days of any change (22 NYCRR 206.6[f]), and there is no reason that the obligation of a claimant to maintain unbroken contact with his attorney should be any less. Consequently, claimant does not have a reasonable excuse for his default “which precludes reliance on CPLR 5015(a)(1)” (State of N. Y. Higher Educ. Servs. Corp. v Sparozic, 35 AD3d 1069 [3d Dept 2006]).

Furthermore, the legal merit of the underlying cause of action is, at best, questionable. There appears to be no dispute that claimant injured his hand while playing basketball at Arthur Kill Correctional Facility, that it was a significant injury (ultimately requiring surgery), and that the injury was to his left hand, which is his dominant hand. To support his contention that the State had notice of the defective condition, claimant has presented three documents, all dated in 1999 (Sherman affirmation, Exhibits E, F, G). They are 1) a memorandum “justification” for a capital project that called for, among other work, replacement of the “old maple gym floor;” 2) a memorandum from the facility’s plant supervisor listing 11 capital projects for 2000-2001 “numbered as per priority,” with the 11th and last project being the replacement of the gym floor; and, 3) a budget request for the 2000-2001 fiscal year containing the item “rehab gym floor,” along with four other projects. Claimant also submitted the result of an inmate grievance that he instituted following the accident. The superintendent’s finding, dated July 9, 2002, stated, “Investigation revealed that upon inspection of gym floor by Fire & Safety Officer and Recreation Supervisor, some areas on the gym floor are in need of repair and should not be played upon” (id. Exhibit H). An underlying investigative report, dated June 26, 2002 and signed by a T. Benjamin, reads as follows: “Spoke with Vinnie on 6/26/02 and he stated that he put in a request for gym floor to be repaired. Due to the budget Albany never responded to the request” (id. Exhibit I).

In opposition to the motion, defense counsel submitted an undated, handwritten memorandum from a Correction Officer Coard to a Sgt. Jorge relating to the incident in which claimant was injured. This report states:
On 6-11-02, I Coard was working a swap and I was assigned to the upper gym with C.O.Rolland. When this incident happen[ed], appx. 7:20 p.m. Inmate Piper was playing basketball when he was about to shoot the ball in the hoop when he was knock[ed] by another inmate and he fell to the floor injur[ing] his finger. Medical was notified. I did not fill out any medical report. The nurse did so. A To/From was sent to the Sgt. (Paterno Affirmation, Exhibit B).
Counsel for defendant also contends that the State is prejudiced because, with the passage of time, memories will have faded and witnesses may have become unavailable.

While it is evident that the gym floor had needed to be refinished for some time, there is nothing to indicate that its condition was known to be dangerous prior to claimant’s accident. Claimant has provided no details of his accident (e.g. what part of the floor he was on when he fell, what he was doing at the time) to lend credibility to his contention that he fell because of a defect on the floor. Indeed, the only details of that event are provided in the memorandum of Officer Coard, and they do not suggest that the condition of the floor played any role in the event. Trial of this matter, therefore, would come down to an issue of credibility: claimant’s account versus that of Officer Coard. For this reason, the passage of time becomes a factor because the recollection of other witnesses, assuming such witnesses could be found, would play a critical role in the outcome.

Inasmuch as claimant has failed to establish that he has a reasonable excuse for his default and that the underlying cause of action is meritorious, his motion is DENIED.

December 17, 2007
Albany, New York

Judge of the Court of Claims

[1].By this time, Attorney Sherman was serving of counsel to claimant’s attorney of record, the firm of Nishman & Savitsky.