New York State Court of Claims

New York State Court of Claims

RINALDI v. THE STATE OF NEW YORK, #2000-013-012, Claim No. 96021, Motion No. M-61210


Claimants' motion to vacate Decision and Order conditionally dismissing claim is denied.

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:
Attorney General of the State of New York
BY: PATRICK B. SARDINO, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On April 19, 2000, the following papers were read on Claimants' motion to vacate my previous decision and order conditionally dismissing claim:

Notice of Motion; Affidavit and Annexed Exhibits

Affirmation in Opposition

Expert Disclosure Demand

Collateral Source Demand

Demand for Discovery and Inspection

Demand for Verified Bill of Particulars

Notice of Examination Before Trial

Claim and Answer

Claimants filed this medical malpractice action on April 17, 1997. After Claimants failed to meet certain Court ordered discovery deadlines, Defendant moved to dismiss the claim pursuant to CPLR 3126(3) and 3042(e). Claimants did not respond to the motion. A conditional order was filed on April 27, 1999, which provided that the claim would be dismissed unless Claimants served and filed complete responses to Defendant's Article 31 discovery demands and demand for bill of particulars and appeared for certain depositions and for an independent medical examination. The order was served on May 6, 1999 by Defendant with notice of entry. Claimants did not meet the deadlines established by the conditional order and never contacted my chambers to request an enlargement of the period for compliance.

Claimants now move to vacate my conditional order of dismissal. In order to be relieved of their default, Claimants needed to demonstrate both a reasonable excuse for their failure to respond to the order as well as a meritorious cause of action (Alphonse v UBJ, Inc., 266 AD2d 171; Barriga v Sapo, 250 AD2d 795; see also, Thompson v County of Erie, 91 AD2d 850, affd 61 NY2d 648).

Claimants offer four excuses for their non-compliance: (1) the inattention of their former attorney; (2) the loss of certain medical records by their cousin, an attorney who was assisting but not representing them; (3) their inability to retain a new attorney and their pro se status at the time the conditional order was entered; and, (4) Claimant Peter Rinaldi's poor health. I conclude that none of these excuses justifies setting aside the order.

Claimants' former attorney stopped representing them by early November 1996 -- more than two and one-half years before the April 27, 1999 conditional order, and nearly two years before the disclosure deadlines were initially set. Claimants have not explained how his efforts prior to 1996 affected their ability to proceed in 1998-1999.

The missing medical records do not excuse Claimants' non-compliance either. Generally speaking, excuses such as misplacement of a file or document are insufficient, as a matter of law, to permit a court to vacate a default (Migliaccio v Phoenix Insurance Co., 91 AD2d 821, 821-822). Moreover, a perusal of Defendant's Discovery Demands and Demand for Bill of Particulars reveals that Claimants could have responded to many of the demands without referring to any medical records. Certainly the missing medical records did not prevent Claimants from appearing for their depositions. Claimants' submissions also reveal that the medical records were known to be lost in December 1998, yet Claimants have not submitted proof that they tried to procure duplicate copies of the records either before or after the entry of the conditional dismissal order.

Claimants' pro se status and their inability to retain an attorney does not constitute an excuse for their default either. Both the scheduling order and the conditional dismissal order indicated in plain language what Claimants had to do and when they had to do it. Claimants did not indicate in their moving papers that they were confused by the orders. Nor did they show how their pro se status prevented them from complying with the orders. Hence, their reliance upon their pro se status at the time in question is unavailing (Stow Manufacturing Co. v F & K Supply, 232 AD2d 958 [refusing to excuse failure to follow straightforward letter directing appearance and warning of consequences of default]; John Malasky, Inc. v Mayone, 54 AD2d 1059, 1060 [complexity of law and the unfamiliarity with the facts are "woefully inadequate" reasons for a default]; see also, Moore v Claudio, 224 AD2d 502, 503 [inability to retain counsel is not a reasonable excuse for a default]).

Though I am sympathetic to claims that Mr. Rinaldi's health prevented him from pursuing his claim, I find this argument to be insufficient for two reasons. First, the record does not specifically establish the extent to which he was actually impaired during the time period that he was supposed to be responding to Defendant's discovery. He was healthy enough to appear before me on August 10, 1998 at the preliminary conference where the disclosure deadlines were set. Second, there is no suggestion in the record that Mrs. Rinaldi was unable to carry out Claimants' disclosure responsibilities.

Finally, even if I were to conclude that Claimants had shown a reasonable excuse for their default, I conclude that they have not shown that their claim is meritorious (Lugardo v Folkes, 110 AD2d 756; Stow Manufacturing Co. v F & K Supply, 232 AD2d 958, supra; Migliaccio v Phoenix Insurance Co., 91 AD2d 821, supra).

The motion is denied.

June 21, 2000
Rochester, New York

Judge of the Court of Claims