New York State Court of Claims

New York State Court of Claims

VASQUEZ v. THE STATE OF NEW YORK, #2001-005-540, Claim No. 94425, Motion No. M-64049


Claimant's motion to reinstate the claim and then schedule a phone conference is granted to the extent noted.

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:
Emdin & Finkler
By: David J. Finkler, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 14, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On October 17, 2001, the following papers, numbered 1 to 4, were read on motion by Claimant for reinstatement/reopening of the claim:

1, 2 Notice of Motion, Affirmation in Support and Exhibits Annexed
  1. Opposing Affirmation and Exhibits Annexed
  2. Filed Papers: Claim
Upon the foregoing papers, this motion is granted to the extent noted.

The underlying claim herein was filed on July 24, 1996, and alleges, inter alia, that Claimant was injured when she slipped and fell at a doorway to the bathroom at the Albion Correctional Facility on April 26, 1995.

This matter was scheduled for a calendar call on April 24, 2001, and there having been no appearance by Claimant, in an order filed on May 15, 2001, and purportedly served upon Claimant on June 8, 2001, I dismissed the claim for the failure to prosecute pursuant to 22 NYCRR §206.15.

Claimant requests that I reverse the order, nunc pro tunc, and reinstate the claim. Claimant's counsel affirms that prior to the conference in question the only appearances required of his office (located in New Jersey and Manhattan) were by telephone. On the conference date in question, he asserts that no telephone call was received by him, and he "erroneously assumed that the call was postponed . . . [that] no courtesy call was received from . . . the State of New York and the matter slipped past our calendar clerk. . . ." Claimant affirms that the matter is ready for trial save for scheduling a video-taped deposition of her experts. Claimant opines that her claim has merit and that no prejudice would befall any party were I to reinstate the claim. Counsel indicates that at no time did he intend to abandon the claim, and but for the confusion with respect to the initiation of the telephone call on April 24, he has continued to prosecute this claim.

The Defendant demurs, asserting, inter alia, that Claimant has failed to present a reasonable excuse for her failure to appear at the preliminary conference. Defendant notes correctly that generally a party must either appear at the conference personally or make advance arrangements with the court for a telephone appearance. That practice was observed with respect to an earlier conference scheduled for September 20, 2000, in which the court did initiate a telephone call to counsel, albeit only after he had contacted my chambers directly to make such arrangements.

Contrary to the Claimant's assertions, the court has no expectations that the Defendant should or would be expected to make courtesy telephone calls to Claimant. I called a calendar in the courtroom that day, including this matter, and there was no appearance by Claimant. I thereupon dismissed the claim for the failure to prosecute and directed the Defendant to prepare an order. I did not direct or suggest that courtesy phone calls should be initiated by the Defendant.

Defendant also opposes the relief sought on the ground that Claimant has failed to demonstrate a meritorious cause of action, and raises ancillary matters relating to the attorneys of record. Under the circumstances, given what might be characterized as law office failure (CPLR 2001), given Claimant's prompt motion for relief after service of the order herein, and what I accept as Claimant's intentions to prosecute this matter, I will reinstate the claim herein. While Defendant raises a valid point and supplies law which spotlights some pertinent legal issues, I find it unnecessary given the nature of the oversight and the relatively prompt request for relief [1] to require Claimant to establish the meritoriousness of his claim as a prerequisite to reinstatement.

Accordingly, the motion is granted and the claim will be reopened. A telephone conference will be conducted on December 17, 2001, at 9:15 a.m. Claimant's counsel is directed to initiate a call to the court at that time at 585-262-4100 (note new area code).

Defendant does raise two ancillary matters which must be addressed. First, the attorneys of record, as noted in the claim at Paragraph 2, appear to be a different firm than the name of the firm seeking the instant relief. Claimant's counsel is directed to serve and file a substitution of counsel, or seek other appropriate relief after service of a file stamped copy of this order, but in no case later than December 17, 2001. Second, with respect to the response to Item 11 in Claimant's Bill of Particulars dated September 3, 1996, that matter will be addressed at the telephone conference unless Claimant supplies the sought after information prior to said conference. At the conference I will expect the parties to advise me of the status and/or dates for the deposition of Claimant's expert(s). I would further expect at that time to set down a day certain trial date.

Accordingly, the motion is granted to the extent noted, and the Clerk of the Court is directed to reopen the claim herein upon the filing of this order, and to serve this order upon the parties.

November 14, 2001
Rochester, New York

Judge of the Court of Claims

It appears that Claimant's first such motion was returned by the Clerk for the failure to have included an affidavit of service, thus necessitating a second service and filing seeking this relief.