New York State Court of Claims

New York State Court of Claims
CALLEY v. THE STATE OF NEW YORK, # 2021-028-553, Claim No. 133282, Motion No. M-97218

Synopsis

Case information

UID: 2021-028-553
Claimant(s): WAYNE CALLEY
Claimant short name: CALLEY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133282
Motion number(s): M-97218
Cross-motion number(s):
Judge: RICHARD E. SISE
Claimant's attorney: WAYNE CALLEY, PRO SE
Defendant's attorney: NO APPEARANCE
Third-party defendant's attorney:
Signature date: November 23, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read on Claimant's motion to restore the claim to the calendar:

1. Notice of Motion filed September 16, 2021;

2. Affidavit of Wayne Calley sworn to September 14, 2021;

3. Affidavit of Wayne Calley in support of application pursuant to CLPR 1101 (d).

Filed papers: Claim, Order (Sise, APJ.) filed July 17, 2019

On July 15, 2019 the court issued an order denying claimant's request for a reduction in the filing fee required by Court of Claims Act 11-a (1). The order instructed claimant to pay the fee within 120 days of the filing date of the order and directed the Clerk of the Court to close the file in the event that claimant did not pay the fee within that time. A copy of the order, together with a letter from the Chief Clerk, was mailed to claimant, at the post office box address in the claim, on July 17, 2019. The mailing was not returned to the court. When the fee was not paid as directed, the Clerk closed the file. Claimant has now moved to have the claim restored.

An application to vacate an order and restore a claim may only be granted if it is supported by an affidavit showing sufficient reason for the relief requested (22 NYCRR 206.15). In support of the motion claimant has submitted an affidavit in which he maintains that he did not receive notice of the claim being dismissed and he provides a new address and a new application for waiver of the filing fee.

While claimant asserts that he did not receive notice of the claim being closed, he does not deny that he received a copy of the order which advised him that the claim would automatically be closed if he did not pay the filing fee. Even if his affidavit is read to mean that he did not receive a copy of the order, no circumstances are offered to explain how a mailing sent to his post office box, less than three weeks after the claim was filed, was not received. Claimant also fails to explain why it took more than two years for him to discover that the claim was no longer open. Moreover, claimant's financial position, as set forth in the new application for waiver of the filing fee, essentially mimics that presented in the original application which formed the basis for denial of a waiver. As claimant has not offered a reasonable explanation for not complying with the prior order and has failed to indicate a willingness to pay the fee, the motion should be denied.

Accordingly, it is

ORDERED, that the motion is denied.

November 23, 2021

Albany, New York

RICHARD E. SISE

Judge of the Court of Claims