Opinion
# 2014-015-034Claim No. 112655112865112866-AMotion No. M-85766
01-02-2015
ABDUL JABBOR MALIK v. THE STATE OF NEW YORK
Abdul Jabbor Malik, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Glenn C. King, Esquire Assistant Attorney General
Synopsis
Motion to vacate dismissals was denied as claimant failed to establish a reasonable excuse for his failure to appear for trial and a meritorious cause of action.
Case information
UID: | 2014-015-034 |
Claimant(s): | ABDUL JABBOR MALIK |
Claimant short name: | MALIK |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 112655, 112865, 112866-A |
Motion number(s): | M-85766 |
Cross-motion number(s): | |
Judge: | FRANCIS T. COLLINS |
Claimant's attorney: | Abdul Jabbor Malik, Pro Se |
Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Glenn C. King, Esquire Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 2, 2015 |
City: | Saratoga Springs |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves to vacate the dismissal of claim numbers 112655, 112866-A, and 112865. Claimant failed to appear for the trial of the above claims on September 10, 2014 and the claims were dismissed pursuant to CPLR 3215 (a) and section 206.15 of the Uniform Rules for the Court of Claims (22 NYCRR 206.15).
To succeed in vacating an Order dismissing an action for failure to appear at trial, the claimant was required to establish both a reasonable excuse for the default and a meritorious cause of action (Cotter v Dukharan, 110 AD3d 1331 [3d Dept 2013]; Capital Compost & Waste Reduction Servs., LLC v MacDonald, 73 AD3d 1311 [3d Dept 2010]; Krisztin v State of New York, 34 AD3d 753 [2d Dept 2006]; Blumberg v State of New York, 208 AD2d 581 [2d Dept 1994]; CPLR 5015 [a] [1]; 22 NYCRR § 206.15). In addition, "[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 [3d Dept 2000]). Here, claimant contends that he had a reasonable excuse for failing to appear for trial in that he had telephoned the Judge's chambers and spoke with a clerk who advised him to seek the consent of defense counsel if an adjournment was going to be requested. While claimant asserts that he obtained defense counsel's consent for the adjournment, no request for an adjournment was received by the Court, and the trial of these claims remained scheduled for September 10, 2014. Moreover, claimant's assertion that he suffers from mental illness and was consequently unprepared to proceed with the trial is unreasonable given the nearly ten years these claims have been pending. Lastly, the potential merit of the claims has not been established.
As a result, the motion to vacate the Orders dismissing claim numbers 112655, 112865 and 112866-A is denied.
January 2, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated October 6, 2014;
Affidavit of Abdul Jabbor Malik sworn to October 6, 2014 with exhibits;
Letter dated November 5, 2014 from Glenn C. King.