New York State Court of Claims

New York State Court of Claims

DICKAN v. THE STATE OF NEW YORK, #2004-032-025, Claim No. 102877, Motion No. M-67544


Case Information

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):

Claimant's attorney:
Gustave J. DeTraglia, Jr., Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
March 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 order.

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 Order").[1] 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 [1997]).

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:
I would have to stand in front of my locker and use my arms to boost my weight up onto the locker and stand on the locker which would make me like say four and a half feet off the ground and then I lift my leg over the back bed board and balance myself from not falling while I get on the bed. There is no rails or nothing on the sides of the bed.
(Id, pp 10-11.) To get from the bed to the floor, the process would be reversed. He described his actions on the night of the injury as follows:
. . . I crawled to the rear of my bed. Stood up, placed my leg over the rear foot board, you know. Stepped onto the top of my locker. And it was dark in there. There is no lights and as I was hopping off my locker I guess I lost my balance and I crashed into the cubicle divider, the corner of it.
(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.

March 29, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's second motion for restoration of Claim No. 102877
1. Notice of Motion and Supporting Affidavit of Gustave J. DeTraglia, Jr., Esq., with annexed Exhibits

2. Affirmation in Opposition of Glenn C. King, Esq., AAG

Filed papers: Claim; Answer

[1] The Court's files contain a certified mail receipt ("green card") showing that the order was received by counsel's office on the following day.