New York State Court of Claims

New York State Court of Claims
RIVERA v. STATE OF NEW YORK, # 2020-015-030, Claim No. 129284, Motion No. M-94989

Synopsis

Pro se claimant's motion to vacate judgment was denied as no judgment was entered and no basis to reargue or renew was demonstrated.

Case information

UID: 2020-015-030
Claimant(s): MIGUEL RIVERA, 15A3384
Claimant short name: RIVERA
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129284
Motion number(s): M-94989
Cross-motion number(s):
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
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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 [5]).(1)

Accordingly, claimant's motion is denied.

March 9, 2020

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion dated November 18, 2019;
  2. Affidavit in Support sworn to November 18, 2019, with Exhibits A-C.

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.