This personal injury claim arose on February 7, 2000 at Bare Hill Correctional
Facility. Claimant alleges that he was injured stepping down from the top bunk
to which he had been assigned and that the State is liable for his injuries
because it was negligent in failing to provide a safe method for him to climb
down from that bunk. The claim was filed in August 9, 2000. On October 19,
2000, when the claim was assigned to former Judge John L. Bell, a stipulation
and order was issued requiring that a note of issue and certificate of readiness
be filed on or before September 28, 2001. There was no compliance with this
Following the claim's transfer to this Court, a conference was held on
September 20, 2002, as a result of which it was determined that trial of the
action should be bifurcated and that claimant was to file a note of issue and
certificate of readiness on or before October 28, 2002. Again, there was no
compliance with the order.
Consequently, on January 8, 2003, the Court served an order pursuant to CPLR
3216 requiring that claimant file a note of issue within ninety days ("90 Day
On April 14, 2003, the ninety-day
period having expired and there having been no further communication from
claimant, the claim was dismissed for want of prosecution.
Approximately a month later, counsel for claimant moved to restore the action
(Motion No. M-66814). That motion was denied on the ground that claimant failed
to establish either an acceptable reason for delay, the existence of a
meritorious cause of action, or the absence of any prejudice to the opposing
party (Cippitelli v Town of Niskayuna, 277 AD2d 540 [3d Dept 2000]). By
the instant motion, counsel for claimant seeks to renew or reargue the prior
motion or, "in the further alternative for an order restoring this case to the
calendar in the interest of justice" (notice of motion).
The denial of claimant's earlier motion to restore does not deprive that party
of the right to seek the same relief on more appropriate papers, and an
application to be relieved of judgment or order under CPLR 5015 is the method to
be used for seeking restoration of an action dismissed for want of prosecution
(see, Lopez v Imperial Delivery Serv., 282 AD2d 190 [2d Dept
2003]; Wilson v Nembhardt, 180 AD2d 731 [2d Dept 1992]). Counsel for the
State has set forth in very clear terms why neither a motion to reargue nor a
motion to renew (CPLR 2221) would be appropriate in this situation.
In the instant motion, counsel for claimant contends that dismissal of the
claim was "without due process and was prejudicial since [claimant was given] no
notice that the remedy sought would be dismissal" (DeTraglia affidavit,
¶13). This is quite simply incorrect. The Court's statement in the
January 6, 2003 order that was served on claimant's counsel contained the
following words: "it is ORDERED, that claimant shall serve and file a note of
issue within 90 days of receipt of this order or be subject to dismissal of
the action, pursuant to CPLR 3216" (emphasis supplied). CPLR 3216, which
authorizes motions for want of prosecution, expressly provides that a party, or
the court itself, may secure dismissal of an action "[w]here a party
unreasonably neglects to proceed generally in an action or otherwise delays in
the prosecution thereof." So long as the procedural requirements of the statute
are satisfied, it does not matter whether the underlying delay was, as here,
failure to file a note of issue, some other type of default, or simple inaction
(Baczkowski v D.A. Collins Construction Co., 89 NY2d 499, 503 ).
It is extremely easy for a litigant to avoid dismissal of an action for this
reason, as this Court has previously observed. Decisional law suggests,
however, that there should be no motion to dismiss (or that no such motion
should be granted) if there has been any response to the 90-day demand
indicating an "intention to proceed with the action" (id at 502).
Typically, the motions to dismiss are considered only where the party served
fails to "file a note of issue, move to vacate, or take any other action within
the 90-day period" (Schneider v Meltzer, 266 AD2d 801, 802 [3d Dept
1999]; see also Baczkowski, supra; Blackmon v Meo,
284 AD2d 711 [3d Dept 2001]; Holzer v State of New York, Ct Cl, Jan. 23,
2001, Collins, J., Claim No 100085, Motion No. M-62739). As a noted commentator
has observed, a party's failure to file a note of issue is typically excused "as
long as the plaintiff can satisfy the court that she pressed forward as
diligently as possible after being served with the 90-day demand" (Siegel, NY
Prac, §375, p 599 [3d ed]).
(Vasquez v State of New York, UID No. 2003-032-067, Claim No. 102983,
Motion Nos. M-66172, CM-66274, June 25, 2003, Hard, J.). Despite the ease by
which dismissal can be avoided, in the instant case, claimant's counsel took no
action between receipt of the 90 Day Order and dismissal of the claim, despite
clear warning of the result of such inaction.
As to the elements that must be established in order to restore the claim, the
current submissions from claimant's counsel adds nothing to the inadequate and
unconvincing description of events given as reason for delay in prosecution.
This reason was found to be unacceptable in the prior motion. Counsel also
fails to address the question of whether defendant suffered any actual prejudice
as a result of the delay. Although in opposing the motion, State's counsel
makes no claim that defendant was prejudiced, it is still claimant's burden to
convince the Court that no prejudice has resulted (Cippitelli v Town of
Niskayuna, 277 AD2d 540, supra]).
In support of his contention that the underlying claim is meritorious, counsel
for claimant has submitted the transcript of claimant's examination before
trial. Claimant testified that his injury occurred at approximately 4:30 A.M.
on February 7, 2000, when he awoke and started to leave his cube to go to the
bathroom. He had been assigned the top bunk automatically when placed in this
housing area sometime near the end of 1999 (DeTraglia affidavit, Exhibit B
[Dickan EBT transcript, pp 6, 12]), explaining that there was already another
inmate in the two-person cube and the newer person gets the top bunk. Claimant
stated that he was given no instructions as to how to get into and out of the
bunk in a safe manner, and there was no ladder or other structure for him to
use. He typically got onto the bunk in the following manner:
(Id., pp 12-13.) When asked how these actions differed from the way he
normally exited the bed, on the times when he was injured, claimant replied, "I
thought I was doing the same thing I always did. . . . It always seemed hard
getting up and down from the bunk bed." (id., p 14).
The legal merit of this claim is very weak. Counsel has made no effort to show
that there were other, similar accidents occurring with bunks placed in
identical positions; no testimony or documentation about the "normal" method of
accessing top bunks in the facility; or any other factual predicate from which
the Court might be able to conclude that the accident was caused by anything
other than claimant's momentary inattention or clumsiness. Claimant, therefore,
has failed to make a prima facie showing that the underlying claim has
legal merit (see, Watkins v Clark, 260 AD2d 843, 845 [3d Dept
1999]; Dwyer v West Bradford Corp., 188 AD2d 813, 815 [3d Dept 1992]).
For these reasons, claimant's motion is denied.