Opinion
# 2019-040-032 Claim No. 121595 Motion No. M-93236
04-18-2019
ANDREW VAIL v. THE STATE OF NEW YORK
Andrew Vail, Pro Se LETITIA JAMES Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG
Synopsis
Pro se Claimant's Motion to vacate default and revive Claim denied.
Case information
| UID: | 2019-040-032 |
| Claimant(s): | ANDREW VAIL |
| Claimant short name: | VAIL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121595 |
| Motion number(s): | M-93236 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Andrew Vail, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 18, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the Motion of Claimant, Andrew Vail, appearing pro se, to vacate a default judgment and "revive" the Claim is denied.
Claimant filed the Claim in the office of the Clerk of the Court on August 6, 2012. Issue was joined when the State filed its Verified Answer with the Clerk of the Court on September 14, 2012.
By Order of Acting Presiding Judge Richard E. Sise, dated November 18, 2014, the Claim was transferred from the prisoner pro se calendar to the Individual Assignment Calendar of this Judge.
By letter dated December 10, 2014, the Court scheduled a telephone conference with Claimant and Defense counsel for January 14, 2015 at 11:00 a.m. The letter to Claimant was returned to the Court, on December 22, 2014, with a label affixed to the envelope with the preprinted notations "RETURN TO SENDER," "ATTEMPTED - NOT KNOWN," "UNABLE TO FORWARD."
By email communication on January 5, 2015, to the address provided by Claimant in his October 27, 2014 correspondence to the Attorney General's office (with a copy provided to the Court), Claimant was advised that the Court's December 10, 2014 letter was returned as undeliverable. By that email, Claimant also was provided a copy of the Court's December 10, 2014 correspondence, and Claimant was requested to provide an updated telephone number if it differed from that contained in his October 27, 2014 letter.
By telephone call to the Court on January 7, 2015, Claimant advised that he had received the Court's email, but that he was unable to open the letter attached to the email. He advised the Court of his daytime telephone number and also of a new address. Claimant was advised that his updated address must be provided to the Court in writing, and a copy of the Court's December 10, 2014 letter was mailed to Claimant at his new address.
Thereafter, by Daily Report prepared following the January 14, 2015 telephone conference, the Court established the completion date for discovery and the date for service and filing of the Note of Issue and Certificate of Readiness as July 15, 2015. Those dates were agreed upon by the parties during the January 14, 2015 telephone conference.
By letter dated November 2, 2015, Claimant was advised that the Note of Issue and Certificate of Readiness was overdue and he was directed to file the Note of Issue within two weeks or to submit a written reason why the same was not forthcoming. The letter was returned to the Court, on December 4, 2015, with a label affixed to the envelope with the preprinted notations "RETURN TO SENDER," "ATTEMPTED - NOT KNOWN," "UNABLE TO FORWARD."
By letter dated December 16, 2015, Claimant was directed to resume prosecution of this Claim and to serve and file a Note of Issue and Certificate of Readiness within 90 days of receipt of that letter or the Claim would be dismissed, without further notice, pursuant to CPLR 3216. The letter was sent via certified mail, return receipt requested, and a copy was sent via first-class mail to Claimant at his last-known address - 750 Rockaway Avenue, #2B, Brooklyn, New York 11212. On January 4, 2016, the letter which was sent by first-class mail was returned to the Court with a label affixed to the envelope with the preprinted notations "RETURN TO SENDER," "ATTEMPTED - NOT KNOWN," "UNABLE TO FORWARD." On January 6, 2016, the letter which was sent by certified mail, return receipt requested, was returned to the Court with a label affixed to the envelope with the preprinted notations "RETURN TO SENDER," "ATTEMPTED - NOT KNOWN," "UNABLE TO FORWARD." The Court did not receive a response and the Note of Issue and Certificate of Readiness was not filed.
By Order dated April 7, 2016, the Court dismissed the Claim based upon Claimant's failure to resume prosecution of the Claim and file the Note of Issue and Certificate of Readiness. The Court concluded that Claimant's conduct demonstrated a general pattern of delay, that he had neglected his Claim, and that he had lost interest in prosecuting it (Vail v State of New York, UID No. 2016-040-022 [Ct Cl, McCarthy, J., April 7, 2016]).
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]).
Claimant now seeks to restore the Claim to the Court's calendar.
Claimant asserts that until recently, he has "been suffering from a medico-legal disability" which prevented him from prosecuting the action (Affidavit of Andrew Vail, p. 2). Mr. Vail did not further explain his asserted disability, provide any medical evidence to support the assertion, or state how it interfered with prosecuting this Claim for over three years. Thus, the Court finds that Claimant has not offered a reasonable excuse for his default. In addition, Claimant has not established the underlying merit of his Claim. That failure alone compels denial of the motion to restore (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.
April 18, 2019
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 and Affidavit 1 Affirmation in Opposition 2 Filed Papers: Claim, Answer