Claimant's motion to reinstate claim dismissed on calendar call was granted. Claimant established a reasonable excuse for his failure to appear and a meritorious cause of action.
|Claimant short name:||BUTLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Ricky Butler, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 10, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves to "reinstate" his claim, which was dismissed following his failure to appear at a calendar call held on April 29, 2009.
Claimant seeks damages for injuries sustained when he was assaulted by another inmate at Great Meadow Correctional Facility on November 29, 2006, alleging the defendant was negligent in failing to protect him from the foreseeable risk of harm posed by the assailant.
Claimant notified the Court of his release from prison and his new address in Buffalo, New York by letter dated January 14, 2008. Thereafter, claimant requested information regarding the status of his case and notified the Court of a change of address to the Niagara County Jail in Lockport, New York by letter dated April 22, 2008, which was received in the Office of the Chief Clerk on April 25, 2008. The records of the Court were not updated, however, and by letter dated May 27, 2008 claimant was notified at his prior address in Buffalo that his claim was transferred to the Individual Assignment Calendar of this Court. A preliminary conference was scheduled for July 31, 2008, but the letter notifying the claimant of the conference was sent to his prior address in Buffalo, New York, resulting in the claimant's failure to appear at the conference. Claimant was thereafter advised by letter dated March 6, 2009 that his claim would be called at a calendar call on April 29, 2009 and that he may appear in person or respond by letter informing the Court as to whether or not he intended to continue his action. This letter, once again, was sent to the claimant at his prior address in Buffalo, New York. When claimant failed to appear for the calendar call or otherwise notify the Court of his intention to continue the action, the claim was dismissed by Order dated May 5, 2009.
In support of his motion to reinstate the claim, claimant indicates that he has been in the Custody of the Erie County Sheriff's office since December 26, 2008 and prior to that was "bounced" from one jail to another, all the while suffering from psychiatric problems for which various medications had been prescribed.
To succeed in vacating an Order granting a motion to dismiss for failure to appear at a calendar call the claimant was required to establish both a reasonable excuse for the default and a meritorious cause of action (Krisztin v State of New York, 34 AD3d 753 ; Kranenburg v Butwell, 34 AD3d 1005 ; Blumberg v State of New York, 208 AD2d 581 ; CPLR 5015 [a] ; 22 NYCRR § 206.15). Additionally, "[t]he movant must further demonstrate that the default was not willful and without prejudice to the opposing party" (Asterino v Asterino & Assoc., 275 AD2d 517, 519 ). Here, claimant notified the Court of his change of address to the Niagara County Jail by letter dated April 22, 2008 and the Court's records were not updated to reflect this address change. Although claimant failed to notify the Court of his subsequent changes of address as required (see 22 NYCRR § 206.6 [f]), his excuse for failing to do so is reasonable, i.e. severe psychiatric problems and multiple transfers between facilities. Inasmuch as the claim, which was verified by the claimant, appears to be meritorious, and claimant's default was not willful, reinstatement of his claim is appropriate.
Accordingly, claimant's motion is granted, the Order of this Court dated May 5, 2009 dismissing the claim is vacated, and the claim is reinstated.
March 10, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: