1. Notice of Motion and Supporting Affidavit of Kent Kroemer, pro se,
with annexed Exhibits
2. Affirmation in Opposition of James L. Gelormini, AAG
3. Reply Affidavit of Kent Kroemer, pro se
4. Amended Reply Affidavit of Kent Kroemer, pro se
Filed papers: Claims; Answers; Orders, filed March 22, 2004
These three claims, each alleging medical negligence and/or medical
malpractice, were commenced when Claimant was incarcerated in the State prison
system, in 2001 (Claim No. 104047) and 2002 (Claim Nos. 105495 and
In December 2003, the actions were
scheduled to be tried at Wyoming Correctional Facility on February 26, 2004.
Claimant wrote to the Court on December 12, 2003, stating that he would be
unable to attend trials at that location because he was being paroled and,
further, that under the conditions of his parole, he would not be allowed to
leave Monroe County (Kroemer affidavit, Exhibit C).
By a letter from the Chief Clerk dated January 22, 2004, the claims were
scheduled for a calendar call, to be held in Albany, New York on March 4, 2004.
Claimant asserts that in response to the Chief Clerk's letter, he again wrote to
the Court stating that he intended to continue the actions but would be unable
to attend the March calendar call because, as stated previously, the conditions
of his parole restrict him to Monroe County (Kroemer affidavit, Exhibit F
[letter dated January 26, 2004]). When Claimant did not appear at the March 4
calendar call, his claims were dismissed pursuant to 22 NYCRR § 206.10. In
April 2005, Claimant inquired as to the status of his actions and, upon learning
that they had been dismissed, wrote to the Court, enclosing a copy of the
January 26, 2004 letter and requesting that the claims be restored. Claimant
was informed of the proper procedure to follow and this motion ensued.
CPLR 5015(a) requires that a party seeking to restore an action must
demonstrate 1) a reasonable excuse for the default, 2) the existence of a
meritorious cause of action and 3) lack of prejudice to the opposing party.
Defense counsel questions whether Claimant actually sent the January 26, 2004
letter or, if he did, whether he sent it to the correct address. The copies of
that document that are attached to Claimant's April 10, 2005 letter and to the
motion papers bear the proper address for the Clerk's office in Albany. In
light of his prompt and clear responses to previous communications from the
Court, there is no reason to doubt Claimant's word that he responded in a
similar fashion to notice of the March calendar call. More to the point, his
inability to travel outside of Monroe County provides an entirely reasonable
excuse for his failure to appear at the calendar call held in Albany. Indeed,
as Claimant notes, it was an inadvertent misstep on the part of the Court to
schedule the claims for an Albany calendar call when, just a month earlier, he
had provided information about his parole and its restrictions
Defendant challenges the underlying merit of the actions only on the ground
that Claimant has not provided expert affidavits to support his allegations.
While it is true that Claimant will have to supply expert medical testimony to
prevail at trial (Duffen v State of New York, 245 AD2d 653 [3d Dept
1997], lv denied 91 NY2d 810 ), Claimant, appearing pro se,
was not required to provide a CPLR 3012-a certificate of merit when filing a
claim. The claims are not frivolous or insufficient on their face and, as a
practical matter, it is simply unrealistic to expect a pro se claimant to
secure the services of medical experts in order to obtain restoration of claims
that were dismissed for reasons entirely unrelated to lack of merit. Finally,
defense counsel does not argue that the State would be significantly prejudiced
if the claims were restored.
For the reasons stated above, particularly the fact that Claimant had informed
the Court that he would be unable to travel outside Monroe County even before
the March 2004 calendar call was scheduled, Claimant's motion is GRANTED and
Claim Nos. 104047, 105495 and 105498 are restored. These claims will be
assigned to the IAS calendar of a judge in the Rochester district.