New York State Court of Claims

New York State Court of Claims

KINGE v. THE STATE OF NEW YORK, #2000-009-429, Claim No. 88273, Motion No. M-61769


Synopsis


Claimant's motion for an extension of time to respond to the State's notice to admit and discovery demands was granted.

Case Information

UID:
2000-009-429
Claimant(s):
SHIRLEY TURNER KINGE
Claimant short name:
KINGE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
88273
Motion number(s):
M-61769
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
GALASSO, LANGIONE & GOIDELL, LLP
BY: Mark E. Goidell, Esq., of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Louis J. Tripoli, Esq.,
Assistant Attorney General, of Counsel.
Third-party defendant's attorney:

Signature date:
September 18, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an extension of time by which the claimant can respond to the outstanding discovery demands of the defendant.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Memorandum of Law, with Exhibits (Including Affidavit of Russell E. Maines, Esq. [Exhibit C] and Affidavit of Shirley Turner Kinge [Exhibit D] 1,2


Affirmation in Opposition 3

Memorandum of Law (In Opposition) 4

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.[1] 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 to claimant.

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.

September 18, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims




[1]
See Order to Motion No. M-56122.