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
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
This motion followed.
Claimant's counsel portrays the failure to appear as a single error and due to
"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
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] ). 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] ). 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
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.