New York State Court of Claims

New York State Court of Claims

COSTANZO v. THE STATE OF NEW YORK, #2005-028-506, Claim No. 107452, Motion No. M-68970


Claimant's application to vacate the Court's Order of dismissal and for restoration of the Claim to the trial calendar is granted.

Case Information

CONCETTINA COSTANZO The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 10, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's application to vacate the Court's prior Order of Dismissal and for restoration of the Claim to the trial calendar

1) Notice of Motion and Supporting Affirmation of Kara L. Campbell, Esq., (Campbell Affirmation) filed August 20, 2004 with annexed Exhibits A-J[1];

2) Affirmation in Opposition of Assistant Attorney General Joel L. Marmelstein (Marmelstein Affirmation) filed October 18, 2004.

This Claim involves a 93 year-old Claimant who was injured when she tripped and fell at Marcy Correctional Facility on March 23, 2002. Following the filing of the Note of Issue and Certificate of Readiness in February, 2004 the Court conducted a telephone conference on March 30, 2004 wherein it set this matter down for trial on July 27, 2004. The Court issued a Daily Report (see 22 NYCRR§206.10[d]) which memorialized the telephone conference and the trial date of July 27, 2004. On July 27, 2004, neither Claimant nor her counsel appeared for the trial and upon the State's application, the Claim was dismissed.[2] This motion followed.

Claimant's counsel portrays the failure to appear as a single error and due to a

"communication breakdown" the trial date was incorrectly recorded (Campbell Affirmation ¶ 7).

The error is explained by Counsel's calendar clerk who stated that she changed the trial date based upon a "correspondence from a court indicating a trial date of October 29, 2004" (Campbell Affirmation Exhibit I at ¶ 3 [emphasis added]) as it was "[her] impression, at the time, that the aforestated correspondence applied to the within case." (id.)

Contrary to the affirmation of Kara L. Campbell, Esq., Claimant's counsel has not made just "one error" in prosecuting this action on behalf of their elderly client. A review of the Court's Daily Reports indicates the Court's dissatisfaction with counsel's approach to this litigation and Defendant's opposition papers to the instant application highlight an unfamiliarity with Court of Claims practice and procedure. Notwithstanding the foregoing, Defendant has inasmuch as conceded that Claimant will prevail on this application and does not seek possible sanctions (see Rosenthal v State of New York, Ct Cl, Lebous, J., March 2, 2004, Claim No. 105222, UID #2004-019-515).

Court of Claims Act § 19 (3) provides that "[c]laims may be dismissed for failure to appear or prosecute or be restored to the calender for good cause shown, in the discretion of the court" (see 22 NYCRR 206.15; see also CPLR 5015 [a] [1]). A party may be relieved of a prior judgment or order on the ground of "excusable default" only if a motion for this relief is made within one year after the party was served with the order or judgment (CPLR 5015 [a] [1]). Courts have held that, in some circumstances, they have an inherent power to vacate a judgment "in the interest of justice" even after the one year period has expired (see e.g. Molesky v Molesky, 255 AD2d 821).

Upon review of the papers, the Court exercises its discretion to treat the application as made pursuant to the appropriate provisions of law. Here, Claimant has timely made an application to vacate the default prior to the expiration of the one year period. As such, the Court further exercises its discretion to consider the application. Notwithstanding the failure of counsel to produce the alleged correspondence which triggered their default, the Court finds

that Claimant has satisfied its burden of establishing an excusable default and that the Claim appears meritorious. Moreover, Defendant will not be prejudiced by restoration of this action.

Accordingly, given that it is preferable to have Claims resolved upon the merits (see Heinrichs v City of Albany, 239 AD2d 639, 640) the Court exercises its discretion and grants Claimant's application to restore the at issue Claim to the trial Calendar.

The motion is GRANTED.

The Court will conduct a pre-trial conference to be held in chambers on March 30, 2005 at 12 noon for the purpose of setting a date certain for trial. The conference will take place in Utica.

January 10, 2005
Albany, New York

Judge of the Court of Claims

[1] The Exhibits include an affidavit from counsel's calendar clerk (Exhibit I) and an affidavit from Claimant (Exhibit J).
[2] The Court reached Claimant's counsel (Christopher Milliman, Esq.) by telephone on July 27, 2004 who offered that he believed the matter had been adjourned.