New York State Court of Claims

New York State Court of Claims

NATURE'S WAY v. COMMISSIONERS OF THE STATE INSURANCE FUND, and the STATE OF NEW YORK, #2002-016-028, Claim No. 99015, Motion No. M-64153


Synopsis


Motion to vacate order of dismissal was granted.

Case Information

UID:
2002-016-028
Claimant(s):
NATURE'S WAY ENVIRONMENTAL CONSULTANTS AND CONTRACTORS, INC.
Claimant short name:
NATURE'S WAY
Footnote (claimant name) :

Defendant(s):
COMMISSIONERS OF THE STATE INSURANCE FUND, and the STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99015
Motion number(s):
M-64153
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
David J. Pajak, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Anne C. Leahey, Esq., AAG
Third-party defendant's attorney:

Signature date:
March 12, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant's motion to vacate the dismissal of the claim of Nature's Way Environmental Consultants and Contractors, Inc. The underlying claim contains a number of causes of action including malicious prosecution and breach of contract in connection with a lawsuit that Nature's Way alleges was wrongfully commenced against it by the State Insurance Fund. The claim was dismissed in an Order filed July 24, 2001, in which it was stated that:
On June 18, 2001, the Court sent the parties a letter by Certified Mail, Return Receipt Requested, noting that no communications had been received from the parties since defendant's answer was filed on October 30, 1998. The letter stated that if a status update was not provided within 30 days of receipt, the claim would be subject to dismissal. The letter sent to claimant's counsel was returned to the Court by the U.S. Postal Service with an "Unclaimed" stamp. Defendant wrote stating that nothing had occurred in the case since the answer was filed. Accordingly, IT IS ORDERED that claim no. 99015 is dismissed pursuant to §19 of the Court of Claims Act.


Claimant essentially asserts that counsel never received any notification of the letter from the U.S. Postal Service and points to a letter he wrote to the appropriate postmaster after learning the claim had been dismissed. In the letter, counsel states that the first purported date of attempted service noted on the envelope was a Saturday – and there is no access to his office building on Saturday such that service could have been attempted to his suite. The second date was a Thursday and counsel states that no notification was left at his office that anyone had attempted to deliver a piece of certified mail. The third date was a Sunday, on which there is no mail delivery. The U.S. Postal Service's investigation, set forth in an August 28, 2001 letter, was inconclusive.

Defendant maintains that claimant's counsel failed to provide his new address to the Court such that the letter was addressed to his previous address. However, it appears from the papers that the Postal Service was aware of counsel's new address. In any event, in view of the strong public policy that cases be decided on the merits,[1] I find that the dismissal of this case should be vacated.

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-64153 be granted, that this Court's Order dated July 20, 2001 and filed July 24, 2001 be vacated and that the Chief Clerk restore claim no. 99015. IT IS FURTHER ORDERED that within forty-five (45) days of the filing of this Decision and Order, claimant's counsel shall contact Chambers to arrange for a conference.


March 12, 2002
New York, New York

HON. ALAN C. MARIN
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]Along with the pleadings, the following were reviewed: claimant's notice of motion with affirmation in support and exhibits A-M; defendant's affirmation in opposition; and claimant's reply affirmation.