Opinion
# 2018-028-516 Claim No. 119036 Motion No. M-89465
08-13-2018
NORMAN ALLEN v. THE STATE OF NEW YORK
NORMAN ALLEN, PRO SE HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
Motion to vacate an order dismissing the claim pursuant to 22 NYCRR §§ 206.6 (f) [notification of change of address] and 206.10 (g) [failure to appear].
Case information
| UID: | 2018-028-516 |
| Claimant(s): | NORMAN ALLEN |
| Claimant short name: | ALLEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119036 |
| Motion number(s): | M-89465 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | NORMAN ALLEN, PRO SE |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Paul F. Cagino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 13, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Claimant's motion pursuant to CPLR 5015:
1. Notice of Motion dated October 21, 2016;
2. Affidavit of Norman Allen sworn to October 27, 2016;
3. Affirmation of Paul F. Cagino, Esq. dated December 7, 2016 with Exhibits A-B annexed;
4. Unsworn statement of Norman Allen dated December 16, 2016.
This action was brought to recover for the alleged loss of personal property at the hands of employees of defendant. After claimant failed to appear at a calendar call on July 12, 2016, the court, on August 15, 2016, issued an order dismissing the claim pursuant to 22 NYCRR § 206.6 (f) and § 206.10 (g). Claimant has now moved, pursuant to CPLR 5015, to vacate the order of dismissal based on excusable default.
To vacate a default on the ground of excusable default the movant must demonstrate both a reasonable excuse for the default and a meritorious claim or defense (He v Siemens Energy, Inc., 134 AD3d 1310 [3d Dept 2015]). Here, even assuming that claimant has established a reasonable excuse and that the substantive elements of the claim have merit, the motion fails. In opposing the motion defendant has submitted an affidavit by Debra L. Mantell, a legal assistant in the Office of the Attorney General, in which she avers that upon a search of the relevant records maintained by that office she determined that defendant had not been served with a notice of intention, or claim, in this matter. Though claimant was afforded an opportunity to submit proof of service, no such proof was provided. Inasmuch as the absence of such service deprives the court of subject matter jurisdiction (Baysah v State of New York, 134 AD3d 1304 [3d Dept 2015]), claimant cannot establish a meritorious claim and the motion should be denied.
Accordingly, it is
ORDERED, that the motion is denied.
August 13, 2018
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims