New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2003-009-17, Claim No. 93128, Motion No. M-66238


Claimant's motion seeking an order vacating a prior order of the Court which dismissed the claim was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Gordon J. Cuffy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 13, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order to vacate a prior order of this Court which dismissed the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, Affirmation in Support, with Exhibits 1,2,3

Affirmation in Opposition, with Exhibits 4

This claim was filed on December 22, 1995, asserting a claim for personal injuries allegedly suffered by claimant in an accident which occurred on November 1, 1994, on the Cortland campus of the State University of New York.

Following a conference with counsel for the parties at a calendar call held on February 9, 1999, a scheduling order was issued by the Court, with the agreement of counsel, directing inter alia, that a note of issue and certificate of readiness be served and filed on or before July 1, 1999. The note of issue was not served or filed by claimant as directed, nor did claimant request any extension of time or otherwise communicate with the Court. As a result, this claim was placed on another calendar call scheduled for May 16, 2000, at which time the Court intended to inquire into the reason or reasons why there had not been compliance with the Court's scheduling order. This conference was scheduled for 9:30 a.m. on May 16, 2000, upon notice provided to counsel for both parties. Claimant's counsel, however, did not appear at the scheduled time. On the record, therefore, this Court dismissed the claim, with prejudice, based upon the non-appearance by claimant's counsel, and the fact that the note of issue had not been served and filed as previously ordered by the Court.[1]

Claimant then brought a motion to vacate the order of dismissal, and by a decision and order dated November 17, 2000, this Court reinstated the claim. In this decision and order, the Court also directed that all discovery be completed on or before April 30, 2001, and that a note of issue and certificate of readiness be served and filed by claimant no later than May 25, 2001. Furthermore, the Court included a specific warning in this order "that any violation of the time frames...will not be tolerated by the Court."

Once again, however, claimant failed to timely serve or file a note of issue and certificate of readiness by May 25, 2001, nor did claimant request any extension of time to comply with these directives, or communicate with the Court in any manner whatsoever. Approximately two months after the deadline for serving and filing the note of issue had passed, this Court, sua sponte, once again ordered that this claim be dismissed, with prejudice, based upon the failure of claimant to timely serve and file his note of issue.

Now, seventeen months after dismissal of the claim by this Court, claimant has brought a motion seeking an order vacating the dismissal pursuant to CPLR 5015(a). Section 5015(a)(1), the only subdivision possibly applicable herein, provides that a judgment or order may be vacated upon the grounds of "excusable default" if such application is made within one year after service of a copy of the judgment or order, with notice of entry. Although the Court has noted that this application was not brought until approximately 17 months had elapsed from the date of the order dismissing the claim, the Court has not been informed of the date when service of a copy of the order, with notice of entry, was made upon claimant. Notwithstanding this fact, the Court does have the inherent power, within its discretion, to vacate its orders for good cause shown, and a Court is not limited by the grounds set forth in CPLR 5015(a) (see, Siegel, New York Practice, Third Edition, § 426, page 693).

This Court, however, after reviewing the facts and circumstances pertaining to this application, does not find that judicial discretion warrants a decision to vacate its prior dismissal of this claim. In reaching this decision, the Court has taken into consideration the following factors:
  1. This Court had previously dismissed the claim, with prejudice, based upon a failure of claimant to serve and file a note of issue, as required by Court order.
  2. Even after dismissing this claim with prejudice, this Court reinstated the claim, and specifically cautioned claimant that any further failure to comply with Court-imposed time frames would not be tolerated.
  3. Claimant failed a second time to serve and file a note of issue and certificate of readiness within the new time frames established by the Court.
  4. Claimant has not provided a sufficient explanation as to why a note of issue and certificate of readiness was not served and filed within the time frames established by this Court in its decision and order reinstating this claim.
  5. Approximately 17 months transpired between the time that this claim was dismissed and the filing of this motion to vacate the order of dismissal and reinstate the claim, without any sufficient explanation to account for this delay.

Most significantly, the Court finds that defendant would be substantially prejudiced should it now be required to reopen its defense in this claim. The incident forming the basis of this claim occurred approximately eight and one-half years ago and, as set forth in the papers submitted in opposition herein, the steps on which claimant allegedly slipped and fell are no longer in existence. Defendant would also have a most difficult time in attempting to locate both student witnesses to the accident, as well as the State employees who were involved in its investigation and who may be no longer employed by the State.

The Court believes that it had been most lenient to claimant when it originally reinstated this claim in its decision and order dated November 17, 2000. Claimant, however, has not presented to the Court a sufficient explanation for the conduct which led to the dismissal of this claim a second time. "Law office failure" may suffice to explain how the original deadline to serve and file a note of issue was missed, but in this Court's opinion it is clearly insufficient to explain how a second deadline was missed, or why it took 17 months to institute a motion seeking vacatur.

Finally, in the affirmation submitted in opposition to this application, defendant has raised legitimate questions as to whether claimant has presented a meritorious claim, and the Court finds that claimant has made an inadequate showing of merit in his moving papers.

Accordingly, for all of the reasons set forth above, it is

ORDERED, that Motion No. M-66238, seeking an order vacating the prior dismissal of this claim, is hereby DENIED.

May 13, 2003
Syracuse, New York

Judge of the Court of Claims

[1] The Court notes that claimant's counsel eventually appeared at Court for the 9:30 a.m. conference at approximately 11:00 a.m. By that time, however, the Court had already dismissed the claim on the record as set forth above, and defendant's counsel had completed his scheduled conferences and was no longer at the Court. The Court advised claimant's counsel that it would reconsider its decision to dismiss this claim only upon a motion duly served and filed in accordance with the rules of this Court.