Pro se claimant's motion to vacate judgment was denied as no judgment was entered and no basis to reargue or renew was demonstrated.
|Claimant(s):||MIGUEL RIVERA, 15A3384|
|Claimant short name:||RIVERA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Miguel Rivera, Pro Se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||March 9, 2020|
|See also (multicaptioned case)|
Claimant moves to vacate a judgment dismissing the instant claim.
By Decision and Order dated August 7, 2019, defendant's motion to dismiss the claim on the basis of improper service was granted, and the claim was dismissed. Claimant is under the misimpression that a judgment was entered dismissing the claim and therefore moves to vacate the judgment rather than seeking leave to reargue or renew the prior motion under CPLR 2221. A judgment in this matter was not filed and, as indicated above, the claim was dismissed by Decision and Order.
Whether the instant motion is considered one to reargue or renew under CPLR 2221 or a motion to vacate under CPLR 5015, the result is the same. The claim in this matter was improperly served by ordinary first class mail (Court of Claims Act § 11 [a] [i]) and defendant preserved its objection to the method of service by raising it as an affirmative defense in its answer. Although it appears claimant properly served a notice of intention to file a claim by certified mail, return receipt requested, the claimant himself concedes that the claim was served by ordinary first class mail. The service requirements contained in Court of Claims Act § 11 (a) (i) being jurisdictional in nature, dismissal of the claim was required (see e.g. Costello v State of New York, 164 AD3d 1420 [2d Dept 2018]).
To the extent the claimant contends that defendant's notice of motion was defective, the Court has reviewed the notice and finds it meets the requirements of CPLR 2214.
Lastly, claimant requests in his "WHEREFORE" clause that the Court "accept the notice of intent as proper notice for the jurisdiction of the Court" (claimant's affidavit in support, ¶ 8). Court of Claims Act § 10 (8) (a), the statutory authority for the Court to permit a notice of intention to be treated as a claim, requires that a motion be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." As of the date claimant's motion was filed, the three-year statute of limitations applicable to a like claim as against a citizen of the State had expired (CPLR 214 ).(1)
Accordingly, claimant's motion is denied.
March 9, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Claimant was allegedly injured when he bit down on a foreign object in his beef patty at Great Meadow Correctional Facility on June 19, 2016.