New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2003-009-11, Claim No. 101072, Motion No. M-66309


Synopsis


Claimant's motion to reinstate the claim was granted.

Case Information

UID:
2003-009-11
Claimant(s):
CLIFFORD MARTIN
Claimant short name:
MARTIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101072
Motion number(s):
M-66309
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
MINOTTI & IAIA, LLP
BY: Raymond J. Iaia, 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:
March 12, 2003
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, Affirmation of Raymond J. Iaia, Esq., Affidavit of Clifford Martin, with Exhibit 1,2,3

Upon notice provided by mail to defendant's counsel and claimant's then attorney of record, this claim was scheduled for a conference at a calendar call conducted by the Court on November 25, 2002. In the letter from the Court scheduling this conference, and as an accommodation to claimant's counsel, he was permitted to appear at this calendar call by telephone. Claimant's counsel, however, was not available for this conference at the designated time and date, and a paralegal from claimant's counsel's office accepted the call and appeared on behalf of claimant and claimant's counsel. The paralegal advised the Court that outside counsel possibly had been retained to represent claimant in this matter. The Court, however, had no record of any such representation or substitution of counsel, and the paralegal was unable to provide the Court with the name of any such attorney. Furthermore, the paralegal was unable to provide a satisfactory explanation to the Court as to why claimant and/or counsel had failed to comply with a prior scheduling order issued by this Court, which required a note of issue and certificate of readiness to be served and filed by April 30, 2002. As a result, by an order dated November 25, 2002, this Court dismissed the claim, without prejudice.

Claimant, with new counsel,[1] has now moved to reinstate this claim. In his supporting affirmation, claimant's counsel sets forth that his law firm had been retained by claimant and substituted as counsel in February, 2002, prior to the scheduled conference on November 25, 2002. Claimant's counsel acknowledges, however, that the consent was never filed with the Court, and therefore claimant's new attorneys did not receive notice of the conference scheduled for November 25, 2002. Claimant's counsel also affirms that they did not receive any notification of this conference from claimant's former attorneys.

Claimant's counsel, however, has not provided the Court with any explanation as to why there was a failure to comply with the time-frames set forth in the prior scheduling order of this Court, which required that a note of issue and certificate of readiness be served and filed by April 30, 2002. Nevertheless, it does appear that claimant is now and has continually been represented by counsel, and that he has not abandoned his claim.

Based upon the explanation provided by claimant's new counsel, and the "Consent to Change Attorneys" now on file with the Court, it is

ORDERED, that Motion No. M-66309 is hereby GRANTED; and it is further

ORDERED, that Claim No. 101072 is hereby reinstated, and is restored to this Court's calendar of open and untried claims; and it is further

ORDERED, that all discovery, including any and all depositions not yet conducted, shall be completed by September 15, 2003, and that claimant is directed to serve and file his note of issue and certificate or readiness on or before October 10, 2003.


March 12, 2003
Syracuse, New York

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




[1] A "Consent to Change Attorneys", substituting the firm of Minotti & Iaia, LLP, dated February 6, 2002, has been filed with the Court. This consent, however, was not filed with the Court until January 13, 2003, subsequent to the scheduled conference of November 25, 2002 at which time the claim was dismissed.