New York State Court of Claims

New York State Court of Claims

RASCOLL v. THE CITY UNIVERSITY OF NEW YORK, #2002-016-108, Claim No. 99093, Motion No. M-65449


Synopsis


Claim was restored to the calendar.

Case Information

UID:
2002-016-108
Claimant(s):
CHRISTOPHER RASCOLL
Claimant short name:
RASCOLL
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99093
Motion number(s):
M-65449
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Kahn Gordon Timko & Rodriques, P.C.By: Leandros A. Vrionedes, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 29, 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 Christopher Rascoll. In the underlying claim, it is alleged that Mr. Rascoll slipped and fell on a staircase at the College of Staten Island. The claim was dismissed in an Order dated July 20, 2001 and filed August 6, 2001, on the grounds that claimant's counsel had failed to respond to a letter requesting a status update within 30 days and indicating that the claim would be subject to dismissal if a timely response was not provided. The Order noted that the Court's letter, which had been sent by certified mail, return receipt requested, had been returned to the Court by the U.S. Postal Service with a "Returned to Sender" stamp.

Claimant explains that the Court's letter was sent to Ayers & Thompson, counsel of record for Rascoll, when in fact some time after that firm filed the claim, it "ceased to practice law and became defunct . . . [after which] the file was transferred to the office of Kahn Gordon Timko & Rodriques, P.C." See ¶¶4-6 and 9 of the July 1, 2002 affirmation of Leandros A. Vrionedes. Claimant argues that because proof of service of the claim was sent to the Clerk of the Court with an August 26, 1999 cover letter from the Kahn Gordon firm, the Court should have known that Ayers & Thompson was no longer representing claimant. As defendant points out, however, counsel failed to file a substitution of attorney stipulation with the Court.

In any event, claimant has professed a desire to continue prosecuting this claim and in view of the strong public policy that cases be decided on their merits[1], 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-65449 be granted, that this Court's Order dated July 20, 2001 and filed August 6, 2001 be vacated and that the Chief Clerk restore claim no. 99093. 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.


October 29, 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]The following were reviewed: claimant's notice of motion with affirmation in support, the affidavit of Christopher Rascoll and exhibits A-G; defendant's affirmation in opposition; and claimant's reply affirmation.