New York State Court of Claims

New York State Court of Claims

WEBB v. THE STATE OF NEW YORK, #2005-028-524, Claim No. 106035, Motion No. M-69534


Synopsis



Case Information

UID:
2005-028-524
Claimant(s):
CATHERINE JANE WEBB
Claimant short name:
WEBB
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106035
Motion number(s):
M-69534
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
CATHERINE JANE WEBB, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Ellen Matowik, 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 instant application, the Court has read and considered the following papers:
(1) Notice of Motion, undated, filed on December 13, 2004;

(2) Affidavit of Catherine Jane Webb sworn to December 7, 2004 and filed on December 13, 2004 (Webb Affidavit);

(3) Affirmation in Opposition of Assistant Attorney General Ellen Matowik, dated January 18, 2005 and filed on January 19, 2005 (Matowik Affirmation).

The claim herein is inter alia for false arrest, excessive use of force and unproper training of court officers. The claim resulted from an altercation which occurred in the Bronx Criminal Court on May 8, 2001. The claim was prepared and filed by the law firm known as Kahn Gordon Timko & Rodrigues, P.C. The firm was relieved as counsel by Decision and Order of Judge Susan Phillips Read filed December 30, 2002.

In the aforesaid Decision and Order, Judge Read gave Ms. Webb sixty days to obtain new counsel. It also stated that if new counsel did not appear within that time frame, a ninety day conditional Order would be issued. An Order to that effect was signed by Judge Richard E. Sise on April 8, 2003. Thereafter, on November 16, 2004, approximately one year and seven months after the 90 day Order was filed, a final Order was filed dismissing the claim. One month later, the Claimant sought to "reopen" the claim.

Claimant alleges that an attorney had her file during this period and did not return it (Webb Affidavit, ¶ 1 [unpaginated]).

An application to vacate a dismissal is addressed to the discretion of the Court (see Hatcher v Cassanova, 180 AD2d 664, 2d Dept 1992); and although neglect to prosecute dismissals are extremely forgiving (see Kleinplatz v State of New York, unreported decision, Claim No. 104327, September 4, 2003, Sise, J., UID #2003-028-566) a claimant is still required to demonstrate a lack of prejudice to the defendant and a reasonable excuse for the delay (see Hatcher, supra at 665).

In the present claim, Ms. Webb has been without counsel since December 2002. She has attempted to contact (according to her papers) only one attorney during that period – despite a warning that her claim would be dismissed – who has declined to represent her. At present, she still has failed to find counsel to represent her. Ms. Webb has failed to set forth any facts from which the Court could gauge the meritoriousness of her claim.[1] Also, were the Court to reinstate the claim, there is no assurance that Ms. Webb would be able to proceed pro se and the claim would continue to languish. Therefore, the Court is constrained to deny the application.



March 9, 2005
Albany, New York

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



[1] The claim and Notice of Intention are bereft of a factual description of the incident upon which the claim was based. The State has two Affirmative Defenses based upon the failure to comply with Court of Claims Act § 11.