New York State Court of Claims

New York State Court of Claims

LILAVOIS v. THE STATE OF NEW YORK, #2005-028-523, Claim No. 106964, Motion Nos. M-69445, M-69503


Synopsis



Case Information

UID:
2005-028-523
Claimant(s):
PAUL LILAVOIS, GILBERT CONTAVE, VICTORIA VERONICA PATTERSON, REGINALD JOLIVERT AND RICHARD DUPOUX 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:
LILAVOIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
106964
Motion number(s):
M-69445, M-69503
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
LINDA F. FEDRIZZI, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 9, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

In reaching its decision on the present motions to strike the Claimants' Note of Issue and dismiss the claim, the Court has read and considered the following papers:

(1) Notice of Motion No. M-69445 dated December 1, 2004 and filed on December 3, 2004;

(2) Affirmation of Assistant Attorney General Paul F. Cagino dated December 1, 2004 and filed December 3, 2004 (Cagino Affirmation #1) together with Exhibits A-C;

(3) Affirmation in Opposition of Linda F. Fedrizzi, Esq., dated December 16, 2004 and filed on December 17, 2004 (Fedrizzi Affirmation) together with Exhibit A annexed;

(4) Notice of Motion No. M-69503 dated December 17, 2004 and filed on December 21, 2004;

5) Affirmation of Assistant Attorney General Paul F. Cagino dated December 17, 2004 and filed on December 21, 2004 (Cagino Affirmation # 2) together with Exhibits A-C.


The claim herein seeks damages for false arrest and the violation of the civil rights of the above named Claimants.

The Defendant, The State of New York, alleges that the attorney for the Claimants has failed to comply with an Order of the Court and has failed to prosecute the claim, resulting in prejudice (Cagino Affirmation # 1, pp 1-3).

Claimants' counsel alleges that the failure to comply with the Order of this Court, resulted from law office failure, in that another firm representing Claimants in another court action was sent the Order and assumed that Ms. Fedrizzi would handle discovery. Ms. Fedrizzi assumed the matter was being handled by the second law firm. As a result, no Court of Claims discovery was completed (Fedrizzi Affirmation, pp 1-3 [unpaginated]).

While there may be some prejudice resulting to the State, it is outweighed by the hardship the Claimants would suffer if their claim is dismissed.

Based upon the above, the Court grants Motion No. M-69503, unless all discovery is complete within ninety (90) days from the service of this Decision and Order upon Claimants' attorney, Ms. Fedrizzi (see Jones v White Metal Rolling & Stamping Corp., 86 AD2d 687 [3d Dept 1982]). Motion No. M-69445 is denied without prejudice.



March 9, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims