New York State Court of Claims

New York State Court of Claims

KRISZTIN v. THE STATE OF NEW YORK, #2005-014-514, Claim No. 103363, Motion No. M-69689


Claimant’s motion to vacate dismissal of the claim for failure to appear at a scheduled conference is denied, based upon a pattern of apparent indifference to the prosecution of the matter.

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:
Rovegno and Taylor, P.C.By: Robert B. Taylor and Robert P. Rovegno
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 2, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 Exhibits.

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][1]; 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 claimant.

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 249-250).

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.

September 2, 2005
New York, New York

Judge of the Court of Claims