New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2000-009-440, Claim No. 93128, Motion No. M-62280


Claimant's motion to restore his claim was granted.

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):

Nicholas V. Midey, Jr.
Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Ed J. Thompson, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
November 17, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking to vacate a prior order made by this Court dismissing the claim, and restoring the claim to the Court's calendar.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2

Affirmation in Opposition 3

This claim, alleging negligence against the State, was filed on December 22, 1995, seeking damages for injuries suffered by claimant when he fell on a wooden staircase located on the campus of the State University of New York at Cortland.

At a calendar call on February 9, 1999, this Court directed that a note of issue and certificate of readiness be filed by claimant on or before July 1, 1999. Claimant did not file the note of issue as directed by the Court, nor did claimant request and extension of time to comply with this order, or otherwise communicate with the Court. Therefore another calendar call was scheduled for May 16, 2000, at 9:30 a.m., upon notice provided to counsel for both parties. Claimant's counsel did not appear at the time scheduled for this conference.

Based upon this non-appearance, as well as the fact that a note of issue and certificate of readiness had not been filed as previously ordered, the Court considered the claim abandoned and dismissed the claim on the record.

A short time later, claimant's counsel appeared at the calendar call at approximately 11:00 a.m., at which time he was advised that an order had been made dismissing the claim. He was further advised that the Court would reconsider its decision to dismiss only upon a motion duly served and filed in accordance with § 206.15 of the Uniform Rules for the Court of Claims. This motion ensued.

In his supporting affirmation, claimant's counsel states that due to "an administrative error", he had noted an incorrect time for the calendar call in his diary, and therefore appeared late.

While the Court is concerned that there was no appearance on behalf of claimant at the designated time for this conference, it does acknowledge the fact that although he was late, claimant's counsel did in fact appear on the date set for the conference. What is more troubling to the Court, however, is the apparent disregard given to the prior scheduling order which required a note of issue to be served and filed by July 1, 1999. In his supporting affirmation, claimant's counsel infers that he was unable to comply with this deadline because he had been unable to complete depositions, and had not received full responses to certain discovery demands. The Court notes, however, that claimant's counsel did not bring any motion to compel depositions or disclosure, nor did he request any extension of the deadlines set in the prior scheduling order made by this Court. In other words, claimant's counsel certainly had available to him remedies other than his decision to simply ignore the scheduling order.

Notwithstanding the above, it does appear by the affirmation of claimant's counsel that some effort had been made to advance this claim through the discovery phase. It is therefore the decision of this Court that this claim should be reinstated, and restored to this Court's calendar of open and untried claims.

Furthermore, in order to ensure that this claim proceeds to trial readiness, the Court directs that all discovery shall be completed on or before April 30, 2001, and a note of issue and certificate of readiness shall be served and filed by claimant no later than May 25, 2001. Claimant is cautioned that any violation of the time frames set forth herein will not be tolerated by the Court.

Accordingly, it is

ORDERED, that Motion No. M-62280 is hereby GRANTED, in accordance with the foregoing.

November 17, 2000
Syracuse, New York

Judge of the Court of Claims