New York State Court of Claims

New York State Court of Claims

VELEZ v. THE STATE OF NEW YORK, #2008-030-559, Claim No. 111537, Motion No. M-75309


Motion to set aside earlier judgment dismissing claim granted, and claim restored. Inmate claimant proceeding pro se has now established - without rebuttal by defendant - that he timely served his claim alleging wrongful confinement among other causes of action by certified mail, return receipt requested as required.

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:
Third-party defendant’s attorney:

Signature date:
September 16, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for an order

vacating the Court’s decision dismissing the claim and restoring the claim to the court calendar:

1,2 Notice of Motion for Leave to Renew Prior Motion C.P.L.R. §2221(e); “Affirmation” in Support of Notice of Motion for Leave to Renew Prior Motion C.P.L.R. §2221(e) by George Velez, Claimant

  1. Affirmation by Dewey Lee, Assistant Attorney General
  1. Letter to Court from George Velez, Claimant, with enclosures, received September 2, 2008
5,6 Filed papers: Claim, Velez v State of New York, UID # 2008-030-016, Claim No. 111537 (Scuccimarra, J., June 6, 2008) George Velez alleges in claim number 111537 that while he was incarcerated at Green Haven Correctional Facility he was wrongfully issued a misbehavior report and thereafter wrongfully confined among other causes of action asserted, including lack of adequate medical care, and bailment. The factual allegations in the claim all occurred from August 2004 through February 2, 2005. Trial of the matter was commenced on May 9, 2008, but was interrupted for resolution of defendant’s motion to dismiss the claim based upon this Court’s alleged lack of personal and subject matter jurisdiction.

After allowing the claimant an opportunity to establish that he had served a claim upon the Attorney General’s Office as required, and after review of the items submitted by claimant, a decision was rendered on June 6, 2008 dismissing the claim because the Court lacked subject matter jurisdiction, and judgment was entered reflecting such dismissal on July 10, 2008. Claimant submitted evidence that he had timely served a notice of intention to file a claim upon the Attorney General’s Office by certified mail, return receipt requested, on February 9, 2005, but did not establish that he ever served a claim upon the defendant. Indeed, the lack of an answer in the clerk’s file seemed to further support this indication. The only matter that claimant established then was that a notice of intention to file a claim was served upon the Attorney General on February 9, 2005 and that a claim may have been filed in the Dutchess County Court in error.

Claimant now moves to reargue or renew or vacate the court’s decision, although he indicates in some confusion that it is his own motion he wishes to renew. From the context, it seems that what claimant is calling a motion was simply his opposition to the defendant’s trial motion to dismiss based on this court’s lack of subject matter jurisdiction.

A motion to set aside a trial decision or the judgment entered based upon that decision, and for a new trial, is made pursuant to Civil Practice Law and Rules §4404(b), applicable in the Court of Claims since no provisions in the Court of Claims Act concern setting aside trial decisions or judgments. See Court of Claims Act §9(9); see also Clark v State of New York, 35 Misc 2d 577, 578 (Ct Cl 1962), mod, 20 AD2d 182 (4th Dept 1964), affd, 15 NY2d 990 (1965). Such a motion must be made within fifteen (15) days after decision, [Civil Practice Law and Rules §4405] although because the Court in a non-jury trial has the power to set aside its decision on its own initiative, the Court of Claims has not always been strict about this time constraint because of the discretionary nature of the review.[1] See Moore v State of New York, 45 Misc 2d 1060, 1061 (Ct Cl 1965). The Court “. . . may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.” Civil Practice Law and Rules §4404(b). The party making the motion should specify what aspect of the trial or decision he disagrees with, and what additional testimony or evidence he would proffer.

Claimant writes that requests to obtain copies of disbursement request forms or other proof of payment for mail service from the correctional facility, resulted in the response that inmate records are kept for three (3) years, and he was provided with copies of his inmate monthly statement. [Affirmation in Support of Notice of Motion for Leave to Renew Prior Motion C.P.L.R. §2221(e) by George Velez, Claimant, ¶7, Exhibits A, B and C]. The inmate statement shows two (2) withdrawals on October 17 and October 25, 2005. [Ibid. Exhibit A]. His request for photocopies of the disbursement forms for these days attached to the motion, is dated July 10, 2008, and contains the handwritten response from a “J. Elliott” that the writer did “not have access at this time to the records . . . [requested] but . . . [was] actively working on retrieving them...” [ibid. Exhibit C]. It is unclear whether claimant ever received a response to an additional request for certified copies of these records dated July 18, 2008, because a photocopy of the response is not complete. [See ibid. Exhibit D].

Claimant has now submitted photocopies of a certified mail receipt showing payment of the cost for certified mail, the green card showing receipt by the Attorney General’s Office on October 27, 2005 of the documents he mailed, and a disbursement request form from the facility showing the proper amount for certified mail, also dated October, 2005. [Letter to Court from George Velez, received September 2, 2008]. The letter enclosing these documents repeats that the facility discards and deletes all of the financial records after retention for a three (3) year period. [Id.]. Claimant also writes:
“I had taken the liberty since the last adjournment and requested from my Sister, a copy of the documents I would need to support my case. My Sister and her three children had moved after her Husband had died and placed all of my documents in her basement for storage and due to her busy work schedule was unable to retrieve them sooner.” [Letter to Court from George Velez received September 2, 2008].

These additional submissions support claimant’s initial contention that he had timely served a claim upon the Attorney General’s Office as required.

Defendant writes “Claimant fails to allege legally sufficient reasons for the court to deviate from its decision dated June 6, 2008 wherein it found that claimant failed to serve our office with the claim . . .” [Affirmation by Dewey Lee, Assistant Attorney General, ¶2]. The letter to the Court received on September 2, 2008, containing the photocopies of the mail receipts indicates that it was mailed to the Attorney General’s Office as well.

Based on the foregoing, the Court finds that claimant has established without rebuttal that the State was served with the claim as required, the motion herein is granted to the extent that the decision and judgment dismissing the claim are vacated, claimant having shown that newly discovered evidence would have changed the result, and the claim is restored to the trial calendar for determination of the merits of the claim, not including any bailment cause of action.[2]

September 16, 2008
White Plains, New York

Judge of the Court of Claims

[1]. A motion made pursuant to Civil Practice Law and Rules §5015(a) involves similar analysis in any event, and is timely for these purposes.
[2].Claimant’s service of a notice of intention to file a claim on February 9, 2005 did not extend the period in which to file and serve a claim under Court of Claims Act § 10(9). Such claim may only be served and filed within 120 days of exhaustion of administrative remedies.