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
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:
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
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.