Opinion
# 2015-029-097 Claim No. 124545 Motion No. M-87353
12-01-2015
PAUL KAIRISv. THE STATE OF NEW YORK
PAUL KAIRIS, PRO SE ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By Belinda A. Wagner, Assistant Attorney General
Synopsis
The court denied claimant's motion to vacate decision and order dismissing the property loss cause of action from the claim. Although there was no basis to vacate under CPLR 5015(a)(3), the court reviewed the prior decision to verify its subject matter jurisdiction, and found it had failed to credit a sworn fact establishing the exhaustion of administrative remedies. Regardless, the prior decision was proper because the dismissed cause of action sounded in tort, not bailment, and was untimely filed more than 90 days after the date of accrual.
Case information
| UID: | 2015-029-097 |
| Claimant(s): | PAUL KAIRIS |
| Claimant short name: | KAIRIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124545 |
| Motion number(s): | M-87353 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | PAUL KAIRIS, PRO SE |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By Belinda A. Wagner, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 1, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for relief from the court's Decision and Order filed on July 24, 2015 on the ground of "fraud, misrepresentation, or other misconduct of an adverse party" (CPLR 5015[a][3]). In its decision the court granted defendant's motion to dismiss the first of the claim's two causes of action. The court explained that claimant failed to submit documentation showing his exhaustion of administrative remedies for his personal property claim pursuant to Court of Claims Act 10(9). Alternatively, the court found that if treated as a tort claim, the claim was untimely.
Claimant now submits documentation showing that he did in fact exhaust his administrative remedy by filing an inmate claim, which was denied on March 31, 2014, thus making the claim here timely filed less than 120 days later on June 19, 2014. He argues that the claim referenced the administrative exhaustion and attached documentation as proof, that the documentation had "vanished," and that defendant "failed to procure the record," and obtained the court's decision through misrepresentation. Defendant argues in opposition that the property at issue, a keyboard, was not lost or injured, but rather "not allowed," so the administrative exhaustion requirements of Court of Claims Act 10(9) did not apply. Rather, the controlling time period for filing and serving a claim was that set forth in Court of Claims Act 10(3) for negligence, 90 days from the date of accrual. Since claimant filed his claim more than 90 days after the accrual date, the court correctly dismissed it as untimely.
There is not a single fact alleged in claimant's motion to support his argument that the court's decision was obtained by fraud or misrepresentation. However, claimant does point out a possible oversight by the court. He alleged in his verified claim that he had exhausted his administrative remedies as of March 31, 2014, a fact of which the court was obligated to assume the truth on a motion to dismiss. The court's decision did not reference that allegation. Providing claimant every benefit of the doubt, the court will determine whether consideration of the allegation requires a different result, and whether the court should vacate its decision in the interests of justice (see CPLR 5015[a]; see also Matter of State of New York v Richard TT, 132 AD3d 72, 74-75 [3d Dept 2015], app dismissed 26 NY3d 994 [2015] [finding that grounds for vacatur in CPLR 5015[a] not exclusive, and that "court has the common-law authority to, in its discretion, grant relief from a judgment or order in the interest of justice"], citing Woodson v Mendon Leasing Corp.,100 NY2d 62, 68 [2003]). The Court of Claims may address the issue of subject matter jurisdiction at any time (see Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220, 228-229 [2013]
The court agrees with defendant that the claim is not one for injury or loss to personal property. Claimant does not dispute the fact that on being disallowed, his keyboard was mailed "home" at his request. There are no allegations or reasonable inferences to be drawn from the existing allegations that the keyboard was lost or injured after it was mailed. As a negligence claim then, and not as a personal property claim, the court correctly decided that the claim was not filed within 90 days after the date of accrual, which at the latest was when the keyboard was shipped on February 13, 2014. Thus, the court sees no basis upon which to conclude that the July 24, 2015 Decision and Order was in error.
Accordingly, claimant's motion to be relieved from the court's July 24, 2015 Decision and Order dismissing the first cause of action is denied. The second cause of action is severed and shall move forward under existing Claim No. 124545.
December 1, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims Papers considered: Notice of Motion and Exhibits Affirmation in Opposition and Exhibits Reply