New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2004-013-004, Claim No. 104607, Motion No. M-67405


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 of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On October 15, 2003, the following papers were read on motion by Claimant for an order restoring this claim to the calendar:
Notice of Motion, Affidavit, Affirmations and Exhibits Annexed

Affirmation in Opposition and Exhibits Annexed

Reply Affirmation

Filed Papers: Claim

The claim herein was dismissed by an order filed on March 19, 2002 by former Presiding Judge Susan Phillips Read after the matter had been called at a calendar call on February 21, 2002. The State of New York announced its readiness for trial, and there being no appearances by or on behalf of Claimant, dismissal was granted pursuant to 22 NYCRR 206.15. The underlying claim sounds in dental malpractice while Claimant was an inmate at the Orleans Correctional Facility.

The motion before me was commenced by the service of the moving papers by mail on September 16, 2003. I could engage in an extended discussion of the history of this matter, but the salient facts are that Claimant was appearing pro se, and when he was released on parole, he neglected to provide the Clerk of the Court of Claims with his then current address. Accordingly, the notice of the calendar call did not reach him and he did not appear. Claimant was, however, thereafter served by the Defendant with the order of dismissal at Claimant's then current address, as the Defendant, but not the Clerk, had been advised of said address.

Claimant seeks to have this matter restored to the calendar. After the dismissal, Claimant retained counsel who apparently chose not to seek an immediate restoration of this matter to the Court of Claims calendar, but instead commenced a proceeding directly against the dentist in Supreme Court. Not surprisingly, that action was dismissed pursuant to Correction Law §24.

The moving papers contain a sworn affidavit from Claimant, supported by an affirmation of merit from a licensed dentist with respect to the alleged dental malpractice. Claimant argues that dismissal pursuant to Court Rule 206.15 is misplaced. Rule 205.15 states in relevant part:
Whenever a note of issue has been filed and the claimant is not ready for trial or fails to appear for a scheduled trial date, or if the assigned judge has directed that the claim be ready for trial by a particular date and the defendant is ready to proceed with the trial but the claimant is not so ready, the assigned judge, upon motion by the defendant or upon his or her own motion, may dismiss the claim unless sufficient reason is shown why such claim should not be tried at that time....

Claimant argues that since no note of issue was filed and since no notice to the Claimant, delivered or not, advised that the matter was to be ready for trial on the date of the calendar call, dismissal pursuant to that rule is not authorized. Indeed, while the notice of that calendar call specified in bold typeface that "this is not a day certain for trial," it clearly noted, also in bold typeface, that "Your failure to reply to this communication by mail or appear at the Calendar Call may result in the dismissal of your claim."

While Claimant scrutinizes §206.15 to distinguish its applicability, he ignores his failure to comply with:
§ 206.6 Contents of Claim or Notice of Intention

(f) Changes in the post office address or telephone number of any attorney or pro se claimant therefor shall be communicated in writing to the clerk within ten days thereof.

Additionally, while Claimant challenges the Court's apparent reliance solely upon §206.15 to dismiss the claim, support for such dismissal may be found in:
§ 206.10 Preliminary Conference
(f) If any party fails to appear for a scheduled conference, the court may note the default on the record and enter such order as appears just, including dismissal.

To the extent that Claimant implies that the Defendant was under an obligation to supply the last known address of Claimant to the Court, there is nothing before me to suggest that the Defendant was aware that the Court did not have Claimant's most current address, or that Claimant had not received notice of the calendar call.

Regardless, however, Claimant's moving papers contain the affirmation of a dentist, affirming that he had personally examined the Claimant in May 2002 and reviewed Claimant's dental records from the Department of Correctional Services (DOCS), and opining that the Defendant's dentist who treated Claimant allegedly "departed from acceptable standards of dental practice." The moving papers appear intentionally vague with respect to the date when counsel was first retained (Paragraph 12 - Becker Affirmation in Support), and, of course, counsel did not seek to restore this matter whenever he was first retained by Claimant, but rather pursued the now dismissed action in Supreme Court. Nonetheless, I can discern no prejudice to the Defendant in granting the motion to restore this matter to the calendar, and allowing such restoration would further the admirable goal of deciding claims on their merits rather than on non-jurisdictional procedural infirmities. Accordingly, in the interests of justice, the motion is granted and the Clerk is directed to restore this matter to the active calendar.

The relief having been granted, the papers before me require additional comment. The Assistant Attorney General opposed the motion by filing an affirmation in opposition and a letter brief containing legal arguments in support. In the reply papers, a second attorney affiant from the firm representing Claimant affirms under penalty of perjury:
4. Defense counsel engaging in unorthodox procedure also submits a September 26, 2003 letter citing case law. Claimant urges the Court to disregard the letter as the CPLR upon behalf [sic] allows for no such submissions in connection with motion practice.

In actuality, it is Claimant's counsel himself who has engaged in the technically improper, but common, practice of citing case law in his affirmation in support of the motion. Specifically, 22 NYCRR 202.8(c), referring to Supreme and County Courts clearly states: "Affidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law."[1]

Court of Claims Rule 206.9(b) similarly states in relevant part, "[t]he moving party shall also serve a copy of all affidavits and briefs upon all other parties at the time of service of the notice of motion." The Assistant Attorney General provided a letter brief fully in accordance with these court rules. I am aware that many counsel insert case law and legal argument in affidavits or affirmations sworn to under penalty of perjury, usually without comment by the Court, even though they are misplaced.

Claimant's counsel, hoisted on his own petard, might best refrain from castigating as unorthodox a practice that is anything but.

Regardless, the motion is granted.

January 14, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]As Professor David Siegel notes: "In clean and crisp practice, the two missions are kept distinct"(Siegel, NY Prac §246, at 397, footnote 6 [3rd ed]).