New York State Court of Claims

New York State Court of Claims

BRINKER v. THE STATE OF NEW YORK, #2004-033-523, Claim No. 107922


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:
Serpe, Andree & KaufmanBy: Jonathan Kaufman, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd Schall, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 26, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

This is a claim by State Farm Insurance Company a/s/o Eve Brinker (hereinafter "claimant") against the State of New York (hereinafter "State") for property damage to a vehicle insured by claimant as the result of an accident occurring on November 15, 2002. Claimant sought damages in the sum of $2,273.15.

At the conclusion of discovery, a conference, with attorneys for both parties present, was held on December 16, 2003, in an attempt to settle the matter. The defendant declined to settle the matter after speaking to its client agency. Therefore, the Court, with the agreement of both parties, set a trial date of April 15, 2004, with expert disclosure to be made by March 15, 2004. Prior to April 15, 2004, neither party contacted the Court to ask permission to delay the trial of this matter or for any reason, including settlement or discontinuance.

On the morning of April 15, 2004, Assistant Attorney General Todd Schall appeared on behalf of the State of New York ready for trial. AAG Schall indicated that he had three witnesses on standby ready to appear. However, AAG Schall also informed the Court that he received a call from claimant's counsel on the evening of April 14, 2004, and stating that they would not appear in court the next day.

My law assistant contacted claimant's counsel in an attempt to discern if someone would be appearing for trial. After being placed on hold for approximately fifteen minutes, a secretary indicated that no one was scheduled to appear. My law assistant then asked to speak with a partner and was informed by the secretary that he was busy and not able to come to the phone. The secretary was directed to tell a partner to have someone in court by 10:00 a.m. At 9:45 a.m., my chambers received a phone call from Jonathan Kaufman, Esq., a partner in the firm. Mr. Kaufman was asked whether or not someone would be appearing for trial on this matter. He indicated that no one would be appearing and that he was trying to settle this matter with the defendant. Counsel was reminded that the case was on for trial as per this Court's order of December 16, 2003 and no adjournment of the trial had been granted. Mr. Kaufman then indicated that the Court could mark the case discontinued with prejudice but that he would not be sending anyone for trial of this matter. Mr. Kaufman had no response when asked why he had not communicated directly with the Court prior to April 15, 2004. Mr. Kaufman then terminated the phone conversation.

This matter is dismissed for claimant's failure to prosecute pursuant to Court of Claims Act §19(3). Further, the parties are to appear for a hearing to determine if the actions of claimant's counsel is sanctionable pursuant to the Rules of the Chief Administrator. Further, Jonathan Kaufman, Esq. is directed to personally appear on behalf of his firm. The defendant is directed to be prepared to present evidence as to the amount of hours and funds expended in regard to the litigation of this matter.

This hearing shall take place in this Court on May 27, 2004, at 9:30 a.m.

April 26, 2004
Hauppauge, New York

Judge of the Court of Claims