New York State Court of Claims

New York State Court of Claims

STRAW v. THE STATE OF NEW YORK, #2004-016-042, Claim No. 102505, Motion No. M-68384


Synopsis


Claim was restored to the calendar.

Case Information

UID:
2004-016-042
Claimant(s):
ANA-SHAY STRAW, an infant by her mother and natural guardian, ALICIA SANDY, and ALICIA SANDY, individually
Claimant short name:
STRAW
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102505
Motion number(s):
M-68384
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Antin, Ehrlich & Epstein, P.C., successor to Michael LoGiudice, LLPBy: Jeffrey S. Antin, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
August 11, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimants' motion to vacate the dismissal of claim no. 102505. In such claim, it is alleged that because of defendant's negligence, Ana-Shay Straw was injured when she fell from a crib at the State University of New York Health Science Center at Brooklyn. On February 3, 2004, the Court sent counsel for claimants a letter by certified mail, return receipt requested, which stated:
Our records indicate that the note of issue in this case was due on November 3, 2003; our file contains no such document. Please advise of the status of this case. If a response is not provided within thirty (30) days of your receipt of this letter, the claim will be subject to dismissal.


The letter was signed for on February 8, 2004. No response was provided in the thirty days thereafter, and on March 16, 2004, the Court issued an Order dismissing the claim pursuant to §19.3 of the Court of Claims Act.

In his affirmation in support of this motion, counsel for claimants explains that a note of issue was not filed by November 3, 2003 because the deposition of a State employee was still outstanding, although counsel concedes that no extension of the note of issue deadline was sought. With regard to the Court's February 3, 2004 letter, counsel states that although the letter was signed for, he "never saw said letter nor did said letter make its way to the file or calendar person. In fact, no one employed herein recalls seeing said letter in our office." Finally, counsel argues that Ana-Shay Straw "was a one year old infant who suffered a fractured skull as a result of the defendant's alleged negligence. . . It would be a grave injustice if the dismissal of this action were not vacated and [claimants] were denied their day in Court." See ¶¶3, 6 and 7 of the April 28, 2004 affirmation of Jeffrey S. Antin.

In view of claimants' desire to proceed with this claim and in view of the strong public policy that cases be decided on their merits[1], I find that the dismissal of this case should be vacated. Accordingly, having reviewed the parties' submissions,[2] IT IS ORDERED that motion no. M-68384 be granted, that this Court's Order dated March 16, 2004 be vacated and that the Chief Clerk restore claim no. 102505 to the calendar.


August 11, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]See, e.g., Acosta v State of New York, 270 AD2d 164, 704 NYS2d 594 (1st Dept 2000).
  2. [2]The Court reviewed claimants' notice of motion with affirmation in support. Defendant submitted no opposition papers.