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 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
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
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.