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,
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.