New York State Court of Claims

New York State Court of Claims

DICKAN v. THE STATE OF NEW YORK, #2003-032-090, Claim No. 102877, Motion No. M-66814


Motion to restore a claim that was dismissed after claimant failed to take action when served with a 90-day order is denied. Claimant failed to establish a reasonable excuse for the delay, and did not address the underlying merit of the claim or the question of prejudice to defendant.

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:
Gustave J. DeTraglia, Jr., Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On January 6, 2003, the Court issued an order, pursuant to CPLR 3216, directing claimant to file a note of issue within ninety days.[1] On April 14, 2003, having heard nothing from claimant, a second order was issued which dismissed the claim on the ground of want of prosecution. Counsel for claimant has now moved for an order restoring the claim.

CPLR 5015 (a) authorizes a court to vacate its order "upon such terms as may be just" on motion of any interested party with such notice as the court may direct, based upon any of five grounds: (1) excusable default; (2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct; (4) lack of jurisdiction; and (5) reversal, modification or vacatur of a prior judgment or order. In addition, a court "has inherent discretionary power to vacate its judgments and orders for good cause shown, not limited by the CPLR 5015 [a] list" (Siegel, NY Practice § 426 [3d ed], at 693).

Section 19(3) of the Court of Claims Act provides that "[c]laims may be dismissed for failure to appear or prosecute or be restored to the calendar for good cause shown, in the discretion of the court" (see, 22 NYCRR 206.15). Most often, the vehicle for achieving restoration of a claim in this Court is CPLR 5015(a) (see, e.g., Welch v State of New York, 261 AD2d 537 [2d Dept 1999]; Amodeo v State of New York, 257 AD2d 748 [3d Dept 1999]). In seeking to restore an action on the ground of excusable default, a moving party must demonstrate: (1) a reasonable excuse for the default, (2) the existence of a meritorious cause, and (3) lack of prejudice to the opposing party caused by the delay (see, e.g., Cippitelli v Town of Niskayuna, 277 AD2d 540 [3d Dept 2000]; Matter of Twin Towers Assocs., Ltd. Partnership of Albany v Board of Assessors of City of Albany, 261 AD2d 705, 706 [3d Dept 1999]).

In the instant motion, claimant's submission addresses only the first criterion: whether there was a reasonable excuse for the default. Claimant's counsel states that he could not comply with the Court's January 2003 order because employees of the defendant had not yet been deposed. Those examinations before trial did not occur, according to claimant's counsel, because "I have been attempting to schedule examinations before trial of the State employees and after several phone calls to the assistant attorney general depositions have not been held and that is the only reason why a note of issue was not filed" (DeTraglia affidavit, ¶8). Also in July 2002, claimant's counsel wrote to the Assistant Attorney General handling this claim, stating that he would like to settle the claim. This letter also stated, "In the event this claim cannot be resolved, I would appreciate your contacting me since I would like to arrange to take a video-tape (sic) deposition of the claimant's treating physician and then file a note of issue for trial" (id, Exhibit C). Consequently, according to counsel, the fault for the delay lies with the fact that the Assistant Attorney General "did not contact me to arrange for a time to take the video deposition" (id, ¶12).

Even if this were all that had occurred,[2] it does not provide an acceptable reason for delay or for failure to respond in any way to the Court's ninety day order. Claimant's counsel has not even attempted to demonstrate that the claim has merit or to address the issue of prejudice.

Claimant's motion is denied.

September 17, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for restoration of Claim No. 102877
1. Notice of Motion and Supporting Affidavit of Gustave J. DeTraglia, Jr., Esq., with annexed Exhibits

2. Affirmation in Opposition of Glenn C. King, with annexed Exhibits

Filed papers: Claim; Answer

[1] As required by the statute, the order was sent to claimant by certified or registered mail.
[2] In fact, defense counsel wrote on August 5, 2002, indicating that the State would make arrangements for the examination(s) once the names of the individuals claimant said had notice of relevant conditions were provided (King affirmation, Exhibit A). Claimant's counsel responded "I will ask my client if he made a complaint to anyone and if so we can do their deposition" (id, Exhibit B).