New York State Court of Claims

New York State Court of Claims

LaBanca v. STATE OF NEW YORK, #2004-016-047, Claim No. 100774, Motion No. M-68716


Claim was restored to the calendar.

Case Information

TIARA KRYSTAL LABANCA, An Infant Under the Age of Fourteen by her Mother and Natural Guardian, ANDREA A. LABANCA and ANDREA A. LABANCA, Individually
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):

Alan C. Marin
Claimant's attorney:
Duffy, Duffy & Burdo, Esqs.By: Paul V. Majkowski, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
August 11, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimants' motion to vacate the dismissal of claim no. 100774. The underlying claim alleges medical malpractice at the State University of New York Hospital at Stony Brook. On March 17, 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 to be filed and served by January 27, 2004; 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 March 18, 2004. No response was provided in the thirty days thereafter, and on April 29, 2004, the Court issued an Order dismissing the claim pursuant to §19.3 of the Court of Claims Act.

Subsequent to the dismissal of the claim, a Consent to Change Attorney form was executed and filed and the firm of Duffy, Duffy and Burdo replaced claimants' original counsel, David Goldstein, Esq. It is argued by such new counsel that the claim should be restored, "as [claimants] desire to proceed, their claim is meritorious and should be decided on the merits, and dismissal would unfairly punish them for their [former] counsel's conduct. First, their former counsel . . . is plainly the culprit here, having ignored and neglected the case for several years . . . [including] defaulting on the court-imposed deadlines . . . The seriously injured infant-claimant should not be denied the opportunity to be justly and fairly compensated due to [former counsel's] conduct . . . claimants plainly desire to proceed with their claim . . ." See ¶¶23-26 of the June 21, 2004 affirmation of Paul V. Majkowski.

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-68716 be granted, that this Court's Order dated April 29, 2004 be vacated and that the Chief Clerk restore claim no. 100774 to the calendar.

August 11, 2004
New York, New York

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 and exhibits A-P. Defendant submitted no opposition papers.