New York State Court of Claims

New York State Court of Claims

DACUS v. THE STATE OF NEW YORK, #2005-019-525, Claim No. 107514, Motion No. M-69696


Synopsis


State's motion for summary judgment dismissing this claim due to claimants' failure to comply with this court's Conditional Order of Preclusion is granted.

Case Information

UID:
2005-019-525
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:
April 8, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is an adjourned motion date on the State of New York's (hereinafter "State") motion for summary judgment dismissing this claim based upon claimants' failure to comply with this court's Conditional Order of Preclusion. The court has received a letter from claimants' counsel dated March 9, 2005 which essentially denies receipt of the defendant's motion papers.

There are now two issues before the court, namely claimants' denial of receipt of the instant motion papers and request for time to respond to this motion, as well as the State's adjourned motion for summary judgment dismissing this claim based upon claimants' failure to comply with this court's prior Decision & Order containing a Conditional Order of Preclusion (hereinafter "Conditional Order of Preclusion"). (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]).[1]


A brief review of the procedural background of this case is warranted, although additional details are set forth in said Conditional Order of Preclusion. On June 21, 2004, the State made its first motion (Motion No. M-68662) seeking dismissal of this claim based on claimants' failure to comply with a discovery schedule of this court set forth in a Preliminary Conference Schedule & Order dated January 28, 2004. Claimants did not submit any papers in response to the State's first motion. Despite claimants' failure to respond to the motion, this court decided to give claimants "one more bite of the apple" and issued the aforementioned Conditional Order of Preclusion, thereby allowing claimants time to provide outstanding discovery. (Conditional Order of Preclusion, p 5). More specifically, said Conditional Order of Preclusion 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].

(Conditional Order of Preclusion, p 5 [emphasis added]).


Thereafter, on February 3, 2005, the State made a second motion, this time seeking an order dismissing the claim due to claimants' failure to comply with said Conditional Order of Preclusion (Motion No. M-69696). Claimants did not submit any papers in opposition to the State's second motion. Nevertheless, to ensure exact compliance with the Conditional Order of Preclusion, this court adjourned the motion until April 6, 2005 because the State's moving papers did not contain proof that it had served the Conditional Order of Preclusion on claimants' counsel with notice of entry.[2] (Dacus v State of New York, Ct Cl, March 7, 2005, Lebous, J., Claim No. 107514, Motion No. M-69696 [UID No. 2005-019-513]).


During this adjourned period, the court received a letter from claimants' counsel dated March 9, 2005 which states in whole as follows:

[o]nce again in this matter, I find myself in a state of disbelief. I have searched this office looking for motion papers on a summary judgment and cannot find them.
Had I been aware of a motion for summary judgment, I most certainly would have responded. By copy of this letter to opposing counsel, I am requesting a copy of the papers and beg the Court for time to respond to same.

(Court Exhibit #2).[3]


With respect to claimants' denial of receipt of the State's instant summary judgment papers, it is well-settled that "[a] properly executed affidavit of service raises a presumption that a proper mailing occurred." (Engel v Lichterman, 62 NY2d 943, 944). Furthermore, the "[m]ere denial of the receipt of the [motion] by mail, without further probative facts, is insufficient to overcome the presumption of delivery which attaches to a properly mailed letter [citation omitted]." (Dean v Sarner, 201 AD2d 770, 771; Electric Ins. Co. v Grajower, 256 AD2d 833, 836, lv dismissed 93 NY2d 848).


Here, the State submitted a properly executed affidavit of service demonstrating service of the summary judgment motion papers on claimants' counsel on February 1, 2005. (Court Exhibit #3). Claimants' counsel denies receipt of the motion papers or, at the very least, the inability to find the same in his office and requests permission to submit late papers. The court is not persuaded to accept late papers given the procedural history of this case. For instance, claimants failed to respond to the State's first motion for dismissal which ultimately resulted in the Conditional Order of Preclusion. Claimants were served with the Conditional Order of Preclusion, but did not respond thereto as discussed below.[4] At no point did claimants' counsel make an application to this court to extend the time to comply with said Conditional Order of Preclusion due to any type of extenuating circumstances. Now, claimants' counsel indicates the motion papers cannot be located and asks time to respond to the motion for summary judgment.


In this court's view, claimants were already provided the proverbial second bite of the apple when they failed to respond to the State's first motion for dismissal and this court granted a Conditional Order of Preclusion, rather than outright dismissal at that time. The court cannot now make further allowances. As such, the court finds that claimants' counsel's denial of receipt of the motion papers fails to raise any question of fact as to whether proper service of the motion papers was made. As such, the court denies claimants' request to submit late papers on this motion. (CPLR 2214 [b]; 22 NYCRR 206.9).


The court will now address the merits of the State's adjourned motion for summary judgment dismissing this claim based upon claimants' failure to comply with this court's Conditional Order of Preclusion. The State served a copy of the Conditional Order of Preclusion on claimants' counsel on October 4, 2004. (Court Exhibit #1). As such, the 60-day deadline thereafter would have expired on December 3, 2004. The State avers that claimants have failed to serve the remaining discovery responses and/or documents and fix a date for depositions in accordance therewith. Consequently, this court's Conditional Order of Preclusion became absolute on December 3, 2004 when claimants failed to comply with the terms thereof. Accordingly, claimants are precluded from offering any evidence at trial relative to said discovery pursuant to the terms of said Conditional Order of Preclusion.


It is well-settled that when a litigant "[d]isobeys a court order and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the...Court [citations omitted]." (Wilson v West Hempstead Generals Football Club, 286 AD2d 438, CPLR 3126 [3]; Kihl v Pfeffer, 94 NY2d 118, 123). Here, claimants' willful conduct can be inferred from their failure to comply with this court's Preliminary Conference Schedule and Order, the Conditional Order of Preclusion, and their failure to respond to the State's motions or to offer a reasonable excuse for their lack of compliance. (Reed v Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630, lv dismissed 98 NY2d 647, lv denied 98 NY2d 611). It is clear that claimants will not be able to prove a prima facie case with such evidence precluded, thereby establishing the State's right to dismissal of the claim on a motion for summary judgment. (Barriga v Sapo, 250 AD2d 795). As such, the court finds that dismissal of the claim is warranted. Finally, the State's request for costs is denied. (CCA 27).


In view of the foregoing, it is ORDERED, that the State's motion for summary judgment, Motion No. M-69696, is GRANTED and Claim No. 107514 is DISMISSED.

April 8, 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. 107514, Motion No. M-68662, filed September 20, 2004.
  2. Notice of Motion No. M-69696, dated February 1, 2005, and filed February 3, 2005.
  3. Affidavit of Beth A. Brownson, Esq., in support of motion, sworn to February 1, 2005, with attached exhibits.
  4. Affidavit of Richard Lockwood, in support of motion, sworn to January 27, 2005, and filed February 3, 2005, with attached exhibits.
  5. Affidavit of Service, sworn to February 1, 2005. (Court Exhibit 3).
  6. DECISION AND ORDER, Lebous, J., Claim No. 107514, Motion No. M-69696, filed March 10, 2005.
  7. Letter from Michael S. Fauci, Esq. to Court, dated March 9, 2005, and received March 11, 2005. (Court Exhibit 2).
  8. Letter from Beth A. Brownson, Esq. to Court, dated March 14, 2005, and received March 15, 2005, with attachments. (Court Exhibit 1).


[1]Selected unreported decisions from the Court of Claims are available via the Internet at
[2]The State has since submitted proof establishing that service of the Conditional Order of Preclusion was made on October 4, 2004 with notice of entry. (Court Exhibit #1).
[3]Although the text of the letter indicates a copy was sent to opposing counsel, there is no traditional "cc" notation on the letter.
[4]The court notes that not only did the State serve the Conditional Order of Preclusion on claimants' counsel, but the Clerk of the Court would have forwarded said Conditional Order of Preclusion to all counsel of record as well.