New York State Court of Claims

New York State Court of Claims

JETER v. THE STATE OF NEW YORK, #2002-009-34, Claim No. 98145, Motion No. M-65311


Synopsis


Claimant's motion seeking an order reinstating his claim was granted.

Case Information

UID:
2002-009-34
Claimant(s):
McCOY JETER The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
JETER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98145
Motion number(s):
M-65311
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
THE DELORENZO LAW FIRM, LLP
BY: Paul E. DeLorenzo, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
July 24, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought this motion seeking an order reinstating his claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit, with Exhibits 1,2


Affidavit of Timely Compliance, with Exhibits 3

Affirmation in Opposition, with Exhibit 4

On April 3, 2002, a conference was held regarding this claim, as part of a calendar call scheduled by the Court upon notice provided to counsel for both parties. At this conference, and by order dated April 3, 2002, this Court dismissed the within claim, without prejudice[1], based upon a failure to comply with a prior order of this Court dated July 3, 2001, which had required a note of issue and certificate of readiness to be served and filed by December 31, 2001.

Claimant has now moved to reinstate the claim. In his supporting affidavit, claimant's counsel has advised the Court that claimant has responded to all of defendant's discovery demands, that any prior extensions to previously issued scheduling orders had been made by defendant, and that all outstanding discovery has been completed. Claimant's counsel also maintains that claimant has a meritorious claim, and that claimant suffered serious injuries, due to the negligence of the defendant.

Defendant's counsel opposes this application on the basis that the within motion was not brought within 30 days of the date of the dismissal order (April 3, 2002), and that this claim should therefore be considered as having been dismissed with prejudice. While defendant's counsel is correct that this motion was not filed within the 30 day period as required by the Court's order, claimant's counsel has submitted an "Affidavit of Timely Compliance" (see Item 3) in which he explains that the within motion, although served upon the Attorney General, was forwarded for filing not to the Clerk's Office of the Court of Claims in Albany, but instead directly to this Court's Chambers in Syracuse. The motion papers, however, were mistakenly mailed to this Court's old address (as the Syracuse Chambers had been relocated in January, 2001) and since the forwarding time from the Postal Department had expired, the motion papers were eventually returned to claimant's counsel, thus explaining the delay in the filing of the within motion.

It does appear, therefore, that claimant's counsel made a good faith effort to serve and file this motion within the 30 day time period provided by the Court in its dismissal order of April 3, 2002. Furthermore, and more importantly, it appears that claimant and his counsel have made a diligent effort to advance this claim through the discovery phase. The Court is therefore satisfied that this claim has not been abandoned, and it appears to be ready for trial.

Accordingly, it is

ORDERED, that Motion No. M-65311 is hereby GRANTED; and it is further

ORDERED, that Claim No. 98145 is hereby reinstated, and is restored to this Court's calendar of open and untried claims; and it is further

ORDERED, that claimant is directed to serve and file his note of issue and certificate of readiness on or before August 30, 2002.


July 24, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims




[1] The order of April 3, 2002 dismissed the within claim without prejudice, but did require that any motion to reinstate the claim must be brought within 30 days of said order. Failure to bring such a motion within the 30 day period would result in the claim being considered as dismissed with prejudice, without any further notice to the parties.