Opinion
# 2020-040-020 Claim No. 126158 Motion No. M-95141
05-04-2020
KENNETH SMITH v. THE STATE OF NEW YORK
Kenneth Smith, Pro Se LETITIA JAMES Attorney General of the State of New York By: Glenn C. King, Esq., AAG
Synopsis
Motion by pro se Claimant to vacate default judgment denied as he did not provide a reasonable excuse for his default or establish his case had merit.
Case information
| UID: | 2020-040-020 |
| Claimant(s): | KENNETH SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126158 |
| Motion number(s): | M-95141 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Kenneth Smith, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Glenn C. King, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 4, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the Motion of Claimant, Kenneth Smith, appearing pro se, to vacate a default judgment and "re-open" the Claim is denied.
Claimant filed the Claim in the office of the Clerk of the Court on May 15, 2015, alleging that, while incarcerated at Franklin Correctional Facility, Defendant's medical staff provided inadequate and untimely medical care for a torn rotator cuff. By letter dated June 11, 2019, the Court scheduled a trial of this matter to be held on November 8, 2019, at the Court of Claims located in Albany, New York, due to Assistant Attorney General King's unavailability for the September 12, 2019 trial date the Court originally scheduled, as a trial date for another matter he was handling had already been scheduled for that date. On November 8, 2019, Claimant failed to appear for trial. The State made a motion to dismiss the Claim on the basis that Claimant failed to appear for trial and, thus, failed to prosecute the Claim.
The Court rendered a bench decision granting the State's motion to dismiss pursuant to Court of Claims Act § 19(3) and Section 206.15 of the Uniform Rules for the Court of Claims Act.
Claimant seeks to reopen his Claim on the basis that he was in the hospital on the date of trial. He submitted one page of a nine page "After Visit Summary" from Strong Memorial Hospital, Emergency Department, dated November 8, 2019. It appears Claimant was in the Emergency Room with chest pain and panic attack. There is no indication, either in Claimant's statement or in the summary, how long Claimant was in the Emergency Room. Claimant also does not state why he or someone on his behalf did not contact the Court on November 8, 2019 to advise the Court of his hospitalization.
In seeking to restore an action on the ground of excusable default, a moving party must demonstrate: (1) a reasonable excuse for the default; (2) the existence of a meritorious cause; and (3) lack of prejudice to the opposing party caused by the delay (see, e.g., Cippitelli v Town of Niskayuna, 277 AD2d 540, 541 [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]; Reyes v State of New York, UID No. 2006-028-523 [Ct Cl, Sise, J., March 9, 2006]). Assuming, arguendo, that Claimant has offered a reasonable excuse for his default, he has not established the underlying merit of his Claim. That failure alone compels denial of the motion to restore (Vail v State of New York, UID No. 2019-040-032 [Ct Cl, McCarthy, J., April 18, 2019]; Fox v State of New York, UID No. 2016-040-004 [Ct Cl, McCarthy, J., Jan. 21, 2016]; Reyes v State of New York, supra; Muhammad v State of New York, UID No. 2003-028-518 [Ct Cl, Sise, J., March 7, 2003]).
Therefore, based upon the foregoing, Claimant's Motion is denied.
May 4, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion to vacate: Papers Numbered Notice of Motion, Statement in Support, & Exhibit Attached 1 Affirmation in Opposition & Exhibit Attached 2 Filed Papers: Claim, Answer