Claimant's motion to reinstate claim dismissed following his failure to appear at calendar call was granted. Claimant established a reasonable excuse for his failure to appear and a meritorious cause of action.
|Claimant short name:||AHLERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Karl Ahlers, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 15, 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 of this Court on April 29, 2009.
Claimant seeks damages for injuries allegedly sustained when he was exposed to second-hand smoke while incarcerated in the D-1 Housing Unit at Arthur Kill Correctional Facility from January 1, 2000 through December 31, 2000.
Claimant was 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 he intended to continue his action. 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. Claimant states in support of his motion that he "has been in the care, custody & control of defendant State since July, 1982, first in the N.Y.S. Dept. of Correctional Services, until his transfer into the custody of the NYS Office of Mental Health on November 22, 2005" (claimant's affidavit in support, ¶ 11). Claimant avers that he did not receive the letter notifying him of the calendar call and that because he was confined, he was obviously unable to attend the calendar call on April 29, 2009.
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's non-appearance at the calendar call was not willful as he did not receive the letter notifying him of the calendar call. Indeed, this letter was returned to the Court with the notation that the claimant was "released" and no further information was available. While the claimant failed to notify the Court of his subsequent changes of address as required (see 22 NYCRR § 206.6 [f]), given his current confinement to the custody of the Office of Mental Health, his failure to do so is reasonable. Moreover, no prejudice to the defendant is discernable and the fact that the defendant's file is in the archives provides no basis for concluding otherwise. 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 15, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: