New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2004-030-557, Claim No. 100625, Motion No. M-68397


Synopsis



Case Information

UID:
2004-030-557
Claimant(s):
PAUL SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100625
Motion number(s):
M-68397
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
CHARLES BERKMAN, ESQ.BY: EPHREM WERTENTEIL, ESQ. OF COUNSEL
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 5, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 7, were read and considered on Claimant's motion brought pursuant to Civil Practice Law and Rules §5015(a) to vacate the Order dismissing the within claim, and restoring it to the calendar:
1,2 Notice of Motion; Affirmation in Support by Ephrem Wertenteil, of counsel to Charles Berkman, attorney for Claimant, and attached exhibits

  1. Affirmation in Opposition by Barry Kaufman, Assistant Attorney General
4-7 Filed Papers: Claim, Answer, Smith v State of New York, Claim No. 100625 (Decision and Order filed November 10, 2003, Scuccimarra, J.); Judgment filed November 17, 2003.

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:
BACKGROUND
This claim was originally scheduled for trial on May 30, 2002 when Claimant was still proceeding pro se. Thereafter, and in a letter to chambers dated May 21, 2002 confirming discussion of the matter over the telephone, present counsel indicated they were appearing on Claimant's behalf, and were requesting an adjournment of the May 30, 2002 trial date. That request was granted, discovery was reopened, and the parties were directed to complete discovery on several occasions. The case was called in for a Calendar Call on June 26, 2003 for failure to timely file a Note of Issue and Certificate of Readiness. Claimant filed a Note of Issue and Certificate of Readiness on July 8, 2003. The matter was scheduled for trial on the issue of liability commencing on October 20, 2003. Notice of the trial date was remitted to both parties first by letter dated July 30, 2003, and subsequently in a Trial Preparation Order dated September 5, 2003. Three days were set aside for the trial. In the July 30, 2003 letter, the Trial Preparation Order and the letter transmitting the Trial Preparation Order, counsel were advised that they were to consider this an Actual Trial Engagement pursuant to the Uniform Rules for the Engagement of Counsel.

A Trial Preparation Conference was held on Wednesday, September 24, 2003, during which exhibits were marked in anticipation of trial. Claimant's attorney presented a trial subpoena for the Court's execution a few days later.

On Friday, October 17, 2003 at 2:30 pm, while the Court was presiding over trials at Green Haven Correctional Facility, chambers received a telephone call from Claimant's counsel requesting an adjournment of the trial that had been marked to commence on Monday, October 20, 2003. Counsel was advised that the request for an adjournment could not be considered until Monday, October 20, 2003 since the Court was not in chambers but presiding over trials elsewhere, and was reminded of the applicability of Part 125 of the Uniform Trial Court Rules concerning the engagement of counsel. Between 4:00 and 4:30 p.m. that afternoon, an Affirmation of Actual Engagement, executed by John J. Sobolewski, an attorney associated with the Law Offices of Charles Berkman, counsel of record for the Claimant, was transmitted by FAX to chambers. It was not, however, served upon the Assistant Attorney General as required by 22 NYCRR §125.1(e)(1), nor did it contain information as to when the conflicting matters noted as scheduled for trial in the two other Courts were first scheduled, or that the other Courts had been advised of the already scheduled trial in this Court. Two other attorneys employed by the office were allegedly unavailable for medical reasons. Counsel telephoned the Assistant Attorney General at approximately 4:00 p.m. on Friday to indicate that he was requesting an adjournment. The Assistant Attorney General did not consent to the request.

On Monday, October 20, 2003 the Assistant Attorney General appeared, ready for trial, and two of the defendant's witnesses appeared as well. Telephone calls to the other Courts indicated in the Affirmation revealed only the information that Mr. Berkman was engaged on trial before Justice Francois Rivera, Kings County Supreme Court, and that Mr. Sobolewski was scheduled to appear at the trial part before Justice Kibbi Payne that morning, and that the Clerk thought that it would go forward. The Clerks could not say when the matters had been marked for trial.

The Court reserved decision on the application for the adjournment and upon the oral motion, indicating it would seek out further information from counsel for Claimant.

Chambers telephoned Claimant's attorneys' office again, advised counsel that further information and substantiation was required, including substantiation of the respective medical conditions of the two other attorneys in the office, and information as to when the two other matters had been scheduled for trial.

Another copy of the Affirmation of Engagement forwarded by Mr. Sobolewski on Friday was transmitted by FAX at approximately 4:55 p.m. on Monday, October 20, 2003, together with another Affirmation of Engagement by Mr. Sobolewski, and a Supplemental Application for Adjournment executed by Charles Berkman. In the Supplemental Application, Mr. Berkman indicates that the case was marked "Final, a jury must be selected, approximately 2 months ago." He further states that "a week ago, Friday" - by this Court's calculations October 10, 2003 - he was "sent out by Justice Torres and a jury was in fact selected on that day. I had my witnesses in court ready to proceed to trial, and after a couple of days waiting time, we were assigned to Justice Francois Rivera. The trial is continuing at this very moment."

With respect to Mr. Sobolewski, Mr. Berkman indicates that his case was "directed to proceed approximately 6-8 weeks ago by Justice Beale. While Mr. Sobolewski attempted to have it adjourned, Justice Beale directed him to select a jury, which he did, and he is in fact on trial at the moment before Justice Payne."

With respect to the two other attorneys, Mr. Berkman provides more detail concerning their respective medical conditions, but does not provide any doctor's note or other substantiation of his statements.

These additional affirmations were not served on opposing counsel.

As this Court stated in its Decision and Order filed November 10, 2003, denying the Claimant's request for an adjournment, and granting the Defendant's motion to dismiss for failure to appear and prosecute, "Trial of the matter was scheduled for more than two (2) months in advance, no substitute counsel was produced on the trial date, and the Court is entitled to impose whatever sanction is permitted by law. See 22 NYCRR §125.1(g). Counsel has failed to comply with the Uniform Rules for the Engagement of Counsel by failing to advise the other courts that they were actually engaged as required, failing to serve opposing counsel with any of the affidavits now supplied to this Court, failing to engage substitute counsel in a matter scheduled for more than two months, and failing to provide additional information requested by the Court, including exactly when they were notified that they were scheduled for trial, and when - and if - they ever advised the other Courts that they were actually engaged before this Court." A Judgment dismissing the Claim based on this Decision and Order was entered on November 17, 2003.
MOTION TO VACATE JUDGMENT
Court of Claims Act §19(3) provides: "Claims 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." 22 NYCRR §206.15 of the Uniform Trial Court Rules applicable in the Court of Claims provides: "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 . . . own motion, may dismiss the claim unless sufficient reason is shown why such claim should not be tried at that time. An order dismissing a claim pursuant to this section or any section of this Part, or pursuant to the Court of Claims Act or the CPLR, shall not be vacated except upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, supported by affidavit showing sufficient reason why the order should be vacated and the claim restored. Such application shall be made to the judge who granted the order of dismissal . . . " In order to vacate such a dismissal and obtain restoration of a case to the calendar the movant must not only show that the Court abused its discretion in dismissing the claim, but that there is sufficient reason why the order should be vacated and the claim restored. See Shabazz v State of New York, 191 AD2d 832 (3d Dept 1993), lv to app dismissed in part, denied in part, 82 NY2d 736 (1993), rearg denied, 82 NY2d 837 (1993), cert denied, 511 US 1094 (1994); Scheckter v State of New York, 33 AD2d 1075 (3d Dept 1970).

The submissions presented by Claimant on the present motion - erroneously premised on the authority of Civil Practice Law and Rules §5015(a), a provision less directly applicable than those existing in the Court of Claims Act[1] - are essentially the same ones previously presented when Counsel asked for the adjournment more than six (6) months ago, except that portions of Claimant's deposition, and the Affirmation in Support completed by Ephrem Wertenteil, of counsel to Charles Berkman, have been submitted as well.

Mr. Wertenteil has cited to various Appellate Division cases [See e.g. Rosario v Elishis, 270 AD2d 404, 405 (2d Dept 2000); Avital v Avital, 152 AD2d 523, 524 (2d Dept 1989); Mayo v New York Telephone Co., 175 AD2d 390 (3d Dept 1991); Poole v Mayer, 112 AD2d 853 (1st Dept 1985)], pronouncing the errors of the trial courts in failing to grant adjournments premised on the engagement of trial counsel, under varying scenarios, unified by the appellate court sensibility that resolution of matters on the merits is generally favored.

Claimant's deposition sets forth the basic facts he is alleging concerning his claim of injury on June 11, 1998 due to a dangerous recurring condition allowed to exist in the messhall at Fishkill Correction Facility. A letter purportedly sent to the Superintendent of the facility two months earlier complaining of the dangerous conditions in the messhall suggests that there might have been notice as required to establish liability against the State. Thus there might be merit to the Claimant's cause of action.

Finally, the Second Department appears reluctant to sustain dismissal on procedural grounds alone and, as noted earlier, enforce consideration of cases on the merits almost regardless of the level of dilatory conduct by counsel. See e.g. Weekes v Karayianakis, 304 AD2d 561 (2d Dept 2003); Mita v Bianchi, 286 AD2d 376 (2d Dept 2001); Ahroni v City of New York, 175 AD2d 789 (2d Dept 1991); Tschernia v Embanque Capital Corporation, 161 AD2d 585 (2d Dept 1990).

Although the Court is frustrated by the failure to properly use the procedure for engagement of counsel at the earliest possible opportunity, the sensibility regarding resolution of matters on the merits is shared by this Court, and will therefore be honored.

Accordingly, Claimant's motion number M-68397 to vacate the judgment of dismissal rendered herein, and to restore the Claim is hereby granted.

August 5, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] The Civil Practice Law and Rules generally apply in the Court of Claims except where provisions of the Court of Claims Act already address an issue. See Court of Claims Act §9(9).