New York State Court of Claims

New York State Court of Claims

BUTLER v. CITY UNIVERSITY OF NEW YORK, #2000-014-503, Claim No. 94794, Motion No. M-61350


Synopsis


Motion to vacate the dismissal of the claim for want of prosecution (CPLR 3216), is denied for failure to show a good and meritorious cause of action, because it appears that the claim was never served upon the City University of New York, as required.

Case Information

UID:
2000-014-503
Claimant(s):
ANDREA BUTLER
Claimant short name:
BUTLER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94794
Motion number(s):
M-61350
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Mallilo & GrossmanBy: Francesco Pomara, Jr.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Lois M. Booker-Williams, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The following papers were read on the claimant's motion to vacate the Court's Order which dismissed the claim, and to extend the time within which to file a Note of Issue: Notice of Motion, Affirmation, Exhibits annexed; Affirmation in Opposition. Filed papers: Claim, Answer.


By Order filed December 30, 1999, the Court dismissed the claim for want of prosecution, pursuant to the provisions of CPLR 3216. In support of this motion, counsel for the claimant concedes that "law office failure" was the reason that a Note of Issue was not filed after receipt on December 3, 1998 of the Court's notice, pursuant to CPLR 3216(b)(3).

In order to warrant the exercise of the Court's discretion to vacate its prior Order, it is necessary, not only that a justifiable excuse be shown, but also that it be demonstrated that there exists "a good and meritorious cause of action." CPLR 3216(e). While the defendant does not oppose the motion on this ground, upon review of the Court's file, there is nothing to indicate that the claim was ever served upon the City University of New York; the defendant's Fifth Affirmative Defense asserts that it was not. An affidavit of service filed with the Court on October 29, 1996, states only that the claim was personally served upon an Assistant Attorney General. "In addition to the usual service and filing requirements imposed by the Court of Claims Act, in any claim brought against it, CUNY must also be served with any claim or notice of intention to file a claim." Brinkley v City University of New York, 92 AD2d 805, 806. If the claim was not also served upon the City University, the defendant having raised the defense in its Answer (see, Court of Claims Act, §11[c]), this Court would be without jurisdiction. Brinkley, supra.

For the foregoing reason, the motion is denied, with leave to renew, within 30 days of receipt of a filed copy of this Order, upon papers which include documentary evidence that the claim was properly served upon the City University of New York.


April 5, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims