New York State Court of Claims

New York State Court of Claims

OUGHTON v. THE STATE OF NEW YORK, #2001-016-041, Claim No. 94168, Motion No. M-63182


Motion to vacate dismissal order 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):

Alan C. Marin
Claimant's attorney:
Pokorny, Schrenzel & Pokorny, P.C.By: Mark E. Cohen, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
June 11, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In the underlying claim, it is alleged that Millicent Oughton tripped and fell over building materials left out by defendant. The claim was dismissed in an order dated February 6, 2001 and filed February 13, 2001 (the "Order"). This is claimant's motion to vacate such dismissal. The Order noted that at a July 28, 1997 conference, a Stipulation and Order was executed which provided that a note of issue be served and filed by claimant on or before June 1, 1998. Claimant failed to comply with such deadline and did not communicate with the Court following such conference.

According to claimant's counsel, Mark E. Cohen, Esq., the particular attorney who attended the conference and signed the stipulation left the firm in December 1997. The file then apparently went to the managing attorney of the firm, who underwent major surgery in February of 1998, was out of the office for four months, and then was again incapacitated because of cancer treatments. Mr. Cohen states that during this time, he was the only attorney working in the office, and was not aware of the deadlines in the stipulation since he had not attended the conference and the file was not in his possession. Defendant's counsel states that an Assistant Attorney General wrote to the managing attorney seeking depositions in January of 1998, i.e., prior to the managing attorney's surgery. Mr. Cohen avers that the letter was never received (although he does not respond to the assertion that defendant's phone calls were not returned prior to the letter).

Defendant also argues that the claim fails to comply with Court of Claims Act §11 and that no medical records have been annexed to claimant's moving papers (they are attached to claimant's reply papers). These arguments are misplaced in that the claim as filed appears identical to the proposed claim submitted with claimant's motion for permission to file a late claim, which motion was granted in a Memorandum Decision and Order dated April 22, 1996 and filed May 14, 1996.

Defendant also rightly notes that no explanation has been offered for the period following the managing partner's recovery. However, in view of the strong public policy that cases be decided on their merits[1] and since to do otherwise would penalize claimant, I find that the dismissal of this case should be vacated. Accordingly, having reviewed the parties' submissions,[2] IT IS ORDERED that motion no. M-63182 is granted, that this Court's Order dated February 6, 2001 and filed February 13, 2001 is vacated and the Chief Clerk is directed to restore the claim. IT IS FURTHER ORDERED that within forty-five (45) days of the filing of this Decision and Order, claimant shall contact Chambers to arrange for a conference.

June 11, 2001
New York, New York

Judge of the Court of Claims

  1. [1]See, e.g., Acosta v State of New York, 270 AD2d 164, 704 NYS2d 594 (1st Dept 2000).
  2. [2]The following were reviewed : claimant's notice of motion with affirmation in support, exhibits A and claimant's affidavit of merits; defendant's affirmation in opposition with exhibits A & B; and claimant's reply affirmation with undesignated affirmation.