Correspondence to the Court from Louis J. Tripoli, Esq., Assistant Attorney
General, dated June 14, 2000 5
Reply Affidavit of Russell E. Maines, Esq., with Exhibits 6
This claim seeks damages from the State based upon allegations of evidence
tampering by members of the New York State Police, which claimant contends led
to her conviction on certain criminal charges.
On December 23, 1989, a family of four was murdered, and their home was set on
fire, in Ithaca, New York. Following this incident, claimant was subsequently
arrested on February 7, 1990, and charged, inter alia, with murder in the
second degree, burglary in the first degree, arson in the third degree, and
hindering prosecution in the first degree. She was subsequently convicted of
third degree arson, first degree burglary, and hindering prosecution in both the
first and second degrees.
On August 25, 1992, claimant's judgment of conviction was vacated, after it was
discovered that some of the evidence used to convict her had been fabricated by
members of the New York State Police. The indictment against claimant was
subsequently dismissed November 9, 1992.
After the judgment of conviction was vacated, claimant filed a notice of
intention with the Court on September 21, 1992. She subsequently filed a claim
with the Court on November 8, 1993.
By an order filed February 17, 1999, this Court dismissed numerous causes of
action set forth by claimant in her claim.
The Court did retain, however, causes of action asserting negligent training and
supervision, unjust conviction, and malicious prosecution.
Following a calendar call and conference, a scheduling order was filed October
13, 1999, which required, inter alia, the service and filing of a note of
issue and certificate of readiness before June 1, 2000.
On or about March 1, 2000, the State served claimant, through her attorney,
with a notice to admit, a demand for documents, and a request for expert
disclosure, to which responses were not and have not been made. Apparently
dissatisfied with her representation, approximately three weeks later claimant
spoke by telephone with Russell Maines, Esq., of Atlanta, Georgia, with regard
to retaining a new attorney to represent her in this claim. Mr. Maines then
obtained copies of the papers on file with the Court, notified claimant's
attorney that Ms. Kinge wished to substitute attorneys, and located an attorney
admitted to practice in New York State who was willing to accept representation
of Ms. Kinge in this matter. When executed, a "Consent to Change Attorney" was
filed with the Court on May 16, 2000. Since Mr. Maines was now aware that there
were outstanding and overdue discovery requests, he also filed this motion
seeking an extension on May 24, 2000.
CPLR 3123 provides that the "recipient of a demand to admit has 20 days in
which to act." In this particular case, claimant or her attorney admittedly did
not respond to the notice to admit in a timely fashion, as required by statute.
Defendant therefore argues that those matters set forth in the notice should now
be deemed admitted by claimant.
Claimant, however, relies upon CPLR § 2004, which provides that "[e]xcept
where otherwise expressly prescribed by law, the court may extend the time fixed
by any statute, rule or order for doing any act, upon such terms as may be just
and upon good cause shown, whether the application for extension is made before
or after the expiration of the time fixed." The question of what is a "good" or
"just" cause is determined by each presiding court on a case by case basis (see,
Tewari v Tsoutsouras, 75 NY2d 1). Factors such as the length of the
delay, whether the opposing party has been prejudiced by the delay, and the
reason for the delay may be considered by the Court on such an application (see,
Tewari v Tsoutsouras, supra).
In this particular case, the Court finds that there was a relatively short
delay from the time in late March, 2000, when claimant's responses to the notice
to admit and discovery demands were due, to late May, 2000, when claimant filed
her application seeking relief from the default. The Court also finds that in
the interim period, claimant's newly retained attorney did not contribute to the
default in responding, but instead took the necessary steps of reviewing the
file, filing a proper substitution of attorney, and bringing this motion seeking
an extension of time in which to respond. Although the defendant claims it
would be prejudiced in the preparation of the defense of this claim were the
Court to grant even a short extension, the Court is well aware that this claim
is over six years old, and the extension requested by claimant will not create
any prejudice to the defendant. On the other hand, if claimant was to be
precluded from responding to the discovery demands, or prohibited from
responding to the notice to admit, substantial prejudice could very well result
Based upon the failure of claimant's former attorney in responding to the
notice to admit and various discovery demands, as well as the failure of that
attorney in communicating with claimant, claimant's discharge of that attorney
and immediate retention of new counsel, the relatively short delay in
proceedings resulting from this failure to respond, and in the absence of any
prejudice to defendant, the Court finds that claimant has established good and
sufficient cause in her application for an extension of time in which to respond
to the notice to admit and various discovery demands. Motion No. M-61769 is
therefore GRANTED. Having made such a determination, however, the Court notes
that claimant's newly retained attorney, by now, should have had sufficient time
in which to review the file and investigate the facts underlying the claim, and
therefore only a relatively short extension is warranted.
Accordingly, it is
ORDERED, that claimant shall respond to the State's notice to admit within 20
days from service of a copy of this order with notice of entry thereon upon the
claimant; and it is further
ORDERED, that claimant shall respond fully to and answer the outstanding
discovery demands of the defendant, including the demand for documents, request
for expert disclosure, and demand for bill of particulars, within 30 days from
service of a copy of this order with notice of entry thereon upon the claimant;
and it is further
ORDERED, that claimant shall serve and file her note of issue and certificate
of readiness on or before February 28, 2001.