New York State Court of Claims

New York State Court of Claims

SPALLONE v. THE STATE OF NEW YORK, #2000-004-542, Claim No. 98864, Motion No. M-62675


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 27, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for dismissal of Claim No. 98864 pursuant to section 206.15 of the

Uniform Rules for the Court of Claims (22 NYCRR 206.15).

The following papers were considered by the Court:
Notice of Motion, filed November 6, 2000 1

Affirmation of Earl F. Gialanella, AAG with attached exhibit
in support of motion, filed November 6, 2000 2

Affidavit of service of motion, sworn to
November 3, 2000 3
Claim, filed August 26, 1998 4

Verified Answer, with Counterclaim, filed
September 29, 1998 5
Reply to Counterclaim, filed December 14, 1998 6
Letter to the Court from claimant dated November 20, 2000 7

The Claim, filed August 26, 1998, alleges damage to real property owned by claimant. The property, apparently income producing, is located in Hammondsport in Steuben County.

According to the Claim, "[o]n or about" October 10, 1996, employees of the New York State Department of Transportation

carelessly and recklessly damaged the real property... by digging ditches, placing concrete barriers and disrupting water supplies, electrical lines and sewer connections... causing [claimant] to have to hire people to reconnect the water supply... and the sewer... and totally shutting off access, except through other property... causing the claimant to sustain loss of use and loss of income from said rental properties.

(Paper No. 4, ¶ 3)[1]

The Claim was filed on claimant's behalf by a member of an Elmira law firm who was thus the attorney of record for claimant. Thereafter, claimant and her attorney had a parting of the ways which the Court first became aware of on August 15, 2000, when the Court Clerk for the Binghamton District contacted the attorney of record to schedule a conference and discuss a trial date. The attorney of record advised the Clerk that he had been discharged by claimant and that claimant had picked up her file from his office.

The day after the Clerk's conversation with the attorney of record, ie. August 16, claimant telephoned the Clerk. Claimant told the Clerk that she had retained a Rochester law firm to represent her in her Court of Claims lawsuit. The Clerk asked that claimant immediately contact the Rochester firm and ask them to get in touch with the Court.

Thereafter, the Court heard nothing from claimant, the attorney of record, or the Rochester attorneys. Three weeks later, on September 7, the Clerk wrote a letter (a copy of which is appended to Paper No. 2 as Exhibit A) to claimant's attorney of record, and sent copies to claimant and State's counsel. The letter made note of claimant's August 16 conversation with the Clerk, then continued
To date we have neither seen a substitution, nor have we heard from any other firm regarding this matter. I again spoke with you and [claimant] today, and repeated what I said to you both in August. ***

Judge Hanifin has decided to schedule a calendar call of this claim. The calendar call will take place at 2:45 p.m., Monday, September 25, 2000 *** As the attorney of record for claimant, you, or the claimant, must appear in person at the calendar call to advise the Court of the status of this claim. By copy of this letter we are asking that if [claimant] has another attorney, that she give this letter to the attorney immediately. Please be advised that in the event that no one appears on behalf of the claimant at the calendar call, the Court may at that time entertain a motion by the State to dismiss this claim for failure to prosecute (see 22 NYCRR 206.15).

(Paper 2, Exhibit A, emphasis in original)

On September 8, the Clerk received a telephone call from a member of the Rochester firm mentioned by claimant in her August 16 telephone call. The Rochester attorney advised the Clerk that his firm might be retained by claimant. The Clerk advised the attorney of the September 25 calendar call. On September 21, the Rochester attorney called chambers and reported that his firm had not been retained by claimant, and that he would not appear at the September 25 calendar call.

On September 25, claimant appeared at the calendar call, without counsel. Claimant told the Court that "I believed I did retain" the Rochester firm.[2] Claimant stated that while she had contacted the Rochester firm "earlier," she first met with members of that firm in April of 1999, and at that time had given them her file. She stated that thereafter she was "in constant contact with them on a regular basis ", estimating "at least three or four times a week." Claimant said that during that time, she "got shifted from one department to another" as "one lawyer quit and another lawyer retired." She said that she finally had a meeting with the attorney who had called the Court on September 8 and 21, "but that was only because I insisted that something had to be done. And that was last May" (i.e. May, 2000).

Claimant told the Court that she had last talked to the attorney from the Rochester firm "two weeks" before the calendar call; that up until that time, she still believed that the firm would be representing her; that during that conversation she was told that the firm would not be taking her case and "they were supposed to send me a letter." Claimant then said that by the time of her final conversation with the Rochester attorney, "I was already thoroughly disgusted and had already called [an attorney in Binghamton] and had an appointment with him."

Claimant told the Court that she met with the Binghamton attorney on the morning of the calendar call and he told her to ask the Court to postpone action on her claim for thirty days so that he could review the file. She stated that she would have the Binghamton attorney contact the Court.

The Court asked claimant, "It is my understanding that you have discharged [the attorney of record]?" Claimant responded, "Correct." The Court said, "So at this time you are not represented by counsel. " Claimant was advised that the Court was going to fix a time "within which you should have an attorney", or within which "the Court should receive a letter from you reciting that you are going to proceed pro se." To which claimant responded, "I understand." The Court continued, "And then your attorneys, or yourself, must immediately respond to the State's demands. The delay has been such that the State could have made a motion to dismiss solely because these demands have not been responded to." Claimant said, "I understand."

The Court gave claimant until October 31, 2000 to either have an attorney file a notice of appearance, or to advise the Court in writing that she would be proceeding on her own. The Court advised claimant that if by October 31, 2000 the Court did not hear from her, or from an attorney representing her, the Court would entertain a motion by the State to dismiss the claim for failure to prosecute. The Court also told claimant, if she had not already done so, to take her file to the Binghamton attorney, to which claimant responded, "He has that. We saw him this morning. I have eight copies of the file. I have a lot of copies."

October 31 came and went without the Court receiving word from claimant, or from an attorney appearing on her behalf. The instant motion followed.

Section 206.15 of the Uniform Rules for the Court of Claims (22 NYCRR 206.15), in pertinent part, states that
Whenever a claim shall have regularly appeared on the general calendar and the defendant is ready to proceed with the trial thereof, but the claimant is not so ready or fails to appear, the assigned judge, upon motion by the defendant or upon his or her own motion, may dismiss the claim unless sufficient reason is shown why such claim should not be tried at that time. An order dismissing such claim shall not be vacated except upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, supported by affidavit showing sufficient reason why the order should be vacated and the claim restored. Such application shall be made to the judge who granted the order of dismissal unless he or she is no longer a member of the court, in which event application shall be made to the Presiding Judge.

Claimant neither notified the Court in writing that she would be proceeding pro se, nor did an attorney acting on her behalf file a notice of appearance by the deadline of October 31 set forth on the record at the September 25, 2000 calendar call.

In his affirmation in support of the motion to dismiss, State's counsel avers

5. Subsequent to the filing of the defendant's answer and counterclaim, the affirmant did receive a telephone call from [claimant's attorney of record]. He stated that he was no longer going to be representing claimant and another attorney may be retained by her. Shortly thereafter, the affirmant received 2 or 3 phone calls from an individual who identified himself as... a friend of the claimant's, stating the defendant's discovery demands would be answered in the near future and the claimant did intend on continuing her prosecution of the claim. [3] Upon information and belief these calls... were in either the Summer or Fall of 1999.

6. Since the [claimant's friend's] telephone calls, the affirmant did not hear from the claimant or anyone representing her (attorney or otherwise) until September 8, 2000 when a telephone call was received from ... an attorney... in Rochester. He stated he had been contacted by the claimant, met with her and was entertaining the prospect of representing her in the claim. He said he would let me know prior to the calendar call date of September 25, 2000 as to what his intentions were. On September 21, 2000 he called the affirmant and said he would not be representing her nor would he be appearing at the calendar call.

(Paper No. 2 [footnote added])

In its Answer, the State asserted a counterclaim for an unspecified amount, claiming that actions by claimant, or others acting on her behalf, resulted in the State having to undertake "remedial action... requiring the expenditure of substantial amounts of labor and materials" for which "claimant is legally responsible for repayment to the defendant of the reasonable monetary value of the labor and materials utilized to complete the said remedial action." (Paper No. 5, ¶¶ 28 and 29)

At the calendar call, State's counsel made no mention of pursuing the counterclaim, nor is there anything beyond passing mention of the counterclaim in the motion papers. The Court therefore deems the State's counterclaim to have been abandoned and will, sua sponte, dismiss it.

The fifth affirmative defense in the Verified Answer provides:
TWELFTH: That the Court of Claims Act § 10(3-b) requires that in claims against the defendant involving intentional torts that a notice of intention to file a claim or claim be served on the Office of the Attorney General within ninety (90) days of the claim's accrual, and that if a notice of intention to file a claim is served a claim must be served on the Office of the Attorney General within one (1) year of accrual.

THIRTEENTH: That the alleged accrual date of the claim is October 10, 1996.

FOURTEENTH: That the claimant served a notice of intention to file a claim on the Office of the Attorney General on December 12, 1996.

FIFTEENTH: That the claim was served on the Office of the Attorney General on August 26, 1998.

SIXTEENTH: That upon information and belief, a substantial portion of the claim is based on actions of the defendant which would allegedly constitute intentional torts.

SEVENTEENTH: That as such the claim was not served within one (1) year of accrual and is untimely under the Court of Claims Act.

EIGHTEENTH: That as such the Court lacks jurisdiction over the defendant and/or subject matter jurisdiction over the action.

Since the State's motion makes no mention of dismissal based upon the jurisdictional grounds raised in the fifth affirmative defense, the Court makes no ruling thereon.

On November 21, 2000, the day before this motion was returnable, a messenger hand delivered a letter from claimant to the Court, which states in pertinent part.
On 11/20/2000, the Court Clerk returned my call. He informed me that the court did not receive any communication from me, and that I should not appear 11/22/2000. He explained that he had spoke [sic] with the Judge that morning concerning my case, and that verbal arguments were not going to be heard. He further advised me to write a letter A.S.A.P. That is why I am hand delivering this letter requesting both Atty. Earl F. Gialanella and Court of Claims, that if a decision must be made at this time, please Dismiss It Without Prejudice.

(Paper No. 7 [emphasis in original])

In light of the tortuous chronology recited, supra, a decision "must be made," and that decision is that the claim will be dismissed, without prejudice, pursuant to 22 NYCRR 206.15. If claimant decides to make a motion seeking an order vacating this order and restoring the claim to the trial calendar, she is advised to do so expeditiously.

that Motion No. M-62675 is GRANTED, and Claim No. 98864 is DISMISSED without prejudice, and it is further ORDERED that the State's counterclaim is sua sponte DISMISSED without prejudice.

November 27, 2000
Binghamton, New York

Judge of the Court of Claims

The Claim recites that a Notice of Intention "was filed on the 12th day of December, 1996 with the Court of Claims and the Office of the Attorney General." (Paper No. 4,¶ 10) On August 31, 1995, the Notice of Intention filing requirements were repealed.
Unless otherwise indicated, quotes are taken from the Court's notes, and the taped record of the September 25, 2000 calendar call.
An individual, who is apparently claimant's friend, was present at the September 25 calendar call. Claimant identified him at one point during the calendar call as someone who knew more about the matter than she did.