New York State Court of Claims

New York State Court of Claims

DACUS v. THE STATE OF NEW YORK, #2005-019-513, Claim No. 107514, Motion No. M-69696


Synopsis


State's motion for summary judgment dismissing this claim is adjourned for thirty days to allow for supplemental submission to establish service of this court's Conditional Order of Preclusion with proper notice of entry.


Case Information

UID:
2005-019-513
Claimant(s):
JEROME DACUS and BERNISTINE DACUS
Claimant short name:
DACUS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107514
Motion number(s):
M-69696
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
FAUCI & FAUCIBY: Michael S. Fauci, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Greene, Hershdorfer & SharpeBeth A. Brownson, Esq., of counsel
Third-party defendant's attorney:

Signature date:
March 7, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The State of New York (hereinafter "State") moves for an order of summary judgment dismissing this claim based upon claimants' failure to comply with this court's Conditional Order of Preclusion. The court has not received any papers in opposition from or on behalf of claimants.

A description of the underlying claim is contained in this court's prior Decision and Order granting claimants permission to file a late claim pursuant to CCA 10 (6) based upon Labor Law 240 and 241 (6). (Dacus v State of New York, Ct Cl, January 29, 2003, Lebous, J., Claim No. 106451, Motion No. M-65937, Cross-Motion No. CM-66049 [UID No. 2003-019-511]).[1]


A discovery schedule was prepared and set forth in a Preliminary Conference Stipulation and Order dated January 28, 2004.[2] About five months thereafter, on June 21, 2004, the State filed a motion seeking an order dismissing this claim pursuant to CPLR 3126 (3) due to claimants failure to comply with said Preliminary Conference Stipulation and Order dated January 28, 2004. This court found claimants' non-compliance to be caused, in part, by the confusion emanating from their change of counsel and, in any event, found no proof of willfulness in said non-compliance. As such, this court issued a Decision and Order which included a Conditional Order of Preclusion in favor of the State. (Dacus v State of New York, Ct Cl, September 7, 2004, Lebous, J., Claim No. 107514, Motion No. M-68662 [UID No. 2004-019-575]). The Conditional Order of Preclusion specifically stated, in part, as follows:

[c]laimants will be precluded from offering any evidence at trial relative to discovery that was the subject of this court's Preliminary Conference Stipulation and Order dated January 28, 2004, unless within 60 days from the date of service of a copy of this Decision and Order with notice of entry by defendant on claimants' counsel, Fauci & Fauci, claimants serve upon defense counsel any remaining discovery responses and/or documents and fix a date for depositions [footnote omitted].

(Dacus, Ct Cl, September 7, 2004, Lebous, J., Claim No. 107514, Motion No. M-68662 [UID No. 2004-019-575], p 5; emphasis added).



Now, the State moves for an order of summary judgment dismissing this claim based upon claimants' failure to comply with this court's Conditional Order of Preclusion. The State has submitted as part of its proof on this motion, an affidavit of service of said Conditional Order of Preclusion upon Michael S. Fauci, Esq. by mail on October 4, 2004. (Exhibit 3 attached to Affidavit of Beth A. Brownson, Esq.).


The State's affidavit of service does not, however, demonstrate that such service provided claimants with "notice of entry" as required by said Conditional Order of Preclusion. In other words, the court cannot ascertain from this affidavit of service whether the copy of the Decision and Order served contained a stamp with the date of entry and the name of the Clerk of the Court or whether an accompanying cover letter provided said information which is required to provide the essential elements of notice of entry. (Matter of Reynolds v Dustman, 1 NY3d 559; Norstar Bank of Upstate NY v Office Control Sys., 78 NY2d 1110; Johnson v State of New York, 256 AD2d 1179; Nagin v Long Is. Sav. Bank, 94 AD2d 710; Matter of Halpin v Perales, 203 AD2d 675). Given the serious consequences of the relief sought herein the court will not overlook this requirement. Rather, the court will adjourn this motion for thirty days from the date of this Decision and Order within which time the State may submit a supplemental affidavit establishing the date of service of a copy of the Condition Order of Preclusion with notice of entry.


In view of the foregoing, it is ORDERED, that the State's motion, Motion No. M-69696, is adjourned until April 6, 2005.


March 7, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 106451, Motion Nos. M-65937 and CM-66049, filed February 21, 2003.
  2. DECISION AND ORDER, Lebous, J., Claim No. 107514, Motion No. M-68662, filed September 20, 2004.
  3. Notice of Motion No. M-69696, dated February 1, 2005, and filed February 3, 2005.
  4. Affidavit of Beth A. Brownson, Esq., in support of motion, sworn to February 1, 2005, with attached exhibits.
  5. Affidavit of Richard Lockwood, in support of motion, sworn to January 27, 2005, and filed February 3, 2005, with attached exhibits.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at

[2]The details of the comings and goings of claimants' counsel are contained in this court's prior Decision & Order. (Dacus v State of New York, Ct Cl, September 7, 2004, Lebous, J., Claim No. 107514, Motion No. M-68662 [UID No. 2004-019-575]). Briefly, however, claimants counsel at that time, Art Ziller, Esq. of the Ziller Firm, did not appear at the preliminary conference despite receiving notice thereof. A copy of the Preliminary Conference Stipulation and Order dated January 28, 2004 was mailed to Mr. Ziller who responded that he was no longer acting of counsel to the Shapiro firm. Thereafter, the firm of Fauci & Fauci was substituted as counsel for claimants.