New York State Court of Claims

New York State Court of Claims

KHENKIN v. THE STATE OF NEW YORK, #2004-028-517, Claim No. 99681, Motion No. M-67700


Synopsis


Case Information

UID:
2004-028-517
Claimant(s):
YURI KHENKIN
Claimant short name:
KHENKIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99681
Motion number(s):
M-67700
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JOEL E. BUDNETZ & JEROME PLOTNER, ESQS.BY: Joel E. Budnetz, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Gail Pierce-SiponenAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 2, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In reaching its decision on the present motion to vacate and set aside a Stipulation of Discontinuance, restoring the Claim to the Court's calendar, permitting a late amended claim to be filed, and granting partial summary judgment with sanctions and legal fees, the Court has read the following papers:


(1) Notice of Motion dated November 14, 2003 filed on November 20, 2003;

(2) Affidavit in Support of Yuri Khenkin sworn to October 31, 2003 filed on November 20, 2003 (hereinafter referred to as "Khenkin Affidavit");

(3) Affirmation in Support of Joel Budnetz, Esq. dated November 14, 2003 and filed November 20, 2003 with Exhibits "A-J" (hereinafter referred to as "Budnetz Affirmation");

(4) Affirmation in Opposition of Assistant Attorney General Gail Pierce-Siponen, with Exhibits "A-I" dated December 29, 2003 filed December 31, 2003 (hereinafter referred to as "Pierce-Siponen Affirmation");

(5) Reply Affirmation of Joel E. Budnetz, Esq. dated December 31, 2003 filed on January 9, 2004 (hereinafter referred to as "Budnetz Reply").

The Claim which formed the basis for the original action arose from the non-payment of various vouchers submitted by the Claimant to the State. The vouchers resulted from translation work performed by Mr. Khenkin as an interpreter during the period 1998-1999. Payment checks sent to Mr. Khenkin were apparently misaddressed and were either returned to the State or forged and cashed by an unknown person.

Mr. Khenkin's claim was filed on January 22, 1999. Thereafter, after some discovery was conducted, a Stipulation of Discontinuance with prejudice was signed on January 3, 2001 and was "So Ordered" by Judge Susan Phillips Read on January 17, 2001.

Thereafter, on June 20, 2001, Mr. Khenkin retained his present attorneys to represent him, because he alleges he never authorized his first attorney, Mr. Daniel Tessler, to discontinue his claim (Khenkin Affidavit, p 1 [unpaginated]); Budnetz's Affirmation, p 2 [unpaginated]). Finally, on November 20, 2003, the attorneys for the Claimant moved to vacate the Stipulation of Discontinuance.[1]

The Defendant opposes the application, inter alia, on the ground that the time for vacatur has expired. Neither the moving papers nor the supporting papers contain the statutory basis for the instant application. The same is true of the Reply Affirmation. The only reference to any statutory authority is contained in the Affirmation of Assistant Attorney General Pierce-Siponen in Opposition, which alludes to Rule 5015(a)(1). Based upon that rule, the Defendant argues that the time within which to move to vacate the Order had expired prior to the instant motion. Though the Claimant did not default, none of the other grounds for vacating a judgment or Order would remotely apply to this case.

Rule 5015(a)(1) provides in pertinent part:
(a) ... the court which rendered a judgment or order may relieve a party from it upon such terms as may be just ... upon the ground of:
(1) excusable default, if such motion is made within one year after service of a copy of the judgment or order ... or, if the moving party has entered the judgment or order, within one year after such entry ...

Here, though it is unknown who entered the Order, it was placed on the record in open Court and the Claimant was aware of it by June 20, 2001, when he retained new counsel. However, notwithstanding the fact that Claimant's original attorney, Mr. Tessler, allegedly entered into the Stipulation of Discontinuance without Mr. Khenkin's consent, the new attorneys did not move to vacate the Stipulation until late November of 2003. No excuse for this inaction has been submitted.[2] Absent the offer of any reasonable excuse for failure to move, the Court is constrained to deny Claimant's request to vacate Judge Read's order. Komlosi v State of New York, 288 AD2d 188.

Having denied the main thrust of the Claimant's motion, those portions concerning amending the Claim and summary judgment are moot. If Claimant believes that new items of damages can be pled, he should move to file a late claim, providing his time has not expired.

Finally, the Court also denies Claimant's request for court and attorney's fees. The facts as stated by the Claimant's papers do not lend themselves to a granting of sanctions.



April 2, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] The Claimant also sought other relief which will be discussed infra.
[2] Also, there has been no indication that any action has been taken against Mr. Tessler for his actions, nor is there any affirmation from Mr. Tessler as to why he discontinued the action.