The following papers were read on the claimant’s motion to vacate the
dismissal of the the claim: Notice of Motion, Affirmation in Support and
Exhibits; Affirmation in Opposition and Exhibits; Reply Affirmation and
Claimant moves to vacate the November 29, 2004 dismissal of this claim pursuant
to section 206.10 (f) of the Uniform Rules for the Court of Claims, contending
that counsel’s failure to appear at a scheduled conference was not
intentional, but due to clerical error. Claimant argues that his submission
establishes: 1) a reasonable excuse for failure to appear; 2) a meritorious
cause of action; and 3) a lack of intention to abandon the claim.
Defendant opposes the motion, asserting that the claim lacks merit, and that
claimant has failed to prosecute this action for nearly six years.
This claim arises out of a motorcycle accident that occurred on July 23, 1999,
at the Ocean Beach Inn parking lot in Babylon, New York. It is alleged that
claimant struck an obscured guardrail as he exited from Ocean Parkway into the
parking lot causing him serious injuries (Affidavit of Steven Krisztin, annexed
to claimant’s motion).
A separate action was commenced against the Oak Beach Inn, the Town of Babylon,
and the County of Suffolk, in Supreme Court, County of Suffolk.
In support of this motion, claimant submits an attorney’s affirmation, in
which it is stated that in the Supreme Court action, on October 18, 2001, an
oral motion was made by the Town of Babylon and County of Suffolk to dismiss the
action as to those entities, on the basis that, “inter alia, the roadway
where the accident occurred was owned and maintained by the State of New York
and not the Town or County.” The affirmation goes on to state that the
application was granted, appealed, and affirmed by the Appellate Division Second
Department, and as a result the only action pending (presumably, prior to it
being dismissed) is the one before this Court, against the State of New York.
The affirmation (Paragraph 10) also explains that the failure to appear at the
November 29, 2004 conference in this Court was the result of a “clerical
error.” According to the affirmation: “The matter had been diaried
as a court appearance in Suffolk County, incorrectly.” In his Reply
Affirmation, counsel states: “The failure of plaintiff’s counsel to
attend the conference in the Court of Claims on November 29, 2004 was not
intentional and was the result of a misreading of the diary entry by the
clerical staff to the effect that the conference was in the Supreme Court,
Suffolk County case.”
A party attempting to vacate a default judgment must establish a reasonable
excuse for the failure to appear for a scheduled conference and demonstrate
there is a meritorious claim (see CPLR 5015 [a]; Blumberg v State
of New York, 208 AD2d 581).
The determination of what constitutes a reasonable excuse for a default lies
within the sound discretion of the court (see Bardales v Blades, 191 AD2d
667), and in exercising that discretion the court may accept law office failure
as an excuse (see CPLR 2005).
Under the circumstances of this case, however, the unsubstantiated allegation
of law office failure does not constitute a reasonable excuse. Office failure
does not address claimant’s apparent failure to proceed with discovery, as
demonstrated by defendant’s unsuccessful attempts to conduct depositions
(Affirmation in Opposition, Exhibits B, C), which are not addressed by
Moreover, the transcript of proceedings in the Supreme Court action (attached
to claimant’s Reply Affirmation as Exhibit 1), indicates that the case was
dismissed on the grounds of noncompliance with discovery demands and failure to
appear at a number of scheduled court dates. And though not included in
claimant’s papers, the Appellate Division Second Department’s
decision, referred to by counsel, states, in its entirety, that: “The
record establishes that the plaintiff’s repeated failure to comply with
the respondent’s demand for a verified bill of particulars was willful.
Accordingly, the Supreme Court properly exercised its discretion in granting the
respondent's motion to dismiss the complaint insofar as asserted against it
[citation omitted]” (Krisztin v Oak Beach Inn Corp., 306 AD2d
What emerges from the record is a pattern of apparent indifference to the
prosecution of this matter, in the Supreme Court as well as in this Court.
Accordingly, the Court declines to exercise its discretion to vacate the
dismissal of the claim; the motion is denied.