New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2006-016-045, Claim No. 94307, Motion No. M-70712


Synopsis


Claim was restored to the calendar.

Case Information

UID:
2006-016-045
Claimant(s):
COLETE LOPEZ, an infant by her mother and natural guardian MAGDALENA LOPEZ FARIAS, NICOLE LOPEZ, an infant by her mother and natural guardian MAGDALENA LOPEZ FARIAS, and MAGDALENA LOPEZ FARIAS and SIGIFREDO LOPEZ, individually
1 1.The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
LOPEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94307
Motion number(s):
M-70712
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Edward D. Fagan, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 28, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimants’ motion to vacate the dismissal of claim no. 94307, in which it is alleged that on December 2, 1995, a patient who had escaped from a New York State psychiatric facility stabbed the infant claimant Colete Lopez with a “dirty and/or infected hypodermic needle.” On January 6, 2003, the Court sent counsel for claimants a letter by certified mail, return receipt requested, which requested counsel to advise of the status of the case within 30 days of receipt. Thereafter, the letter was returned to the Court from the United States Postal Service with the notations “Return to Sender” and “Attempted Not Known.” In a February 7, 2003 order, the Court dismissed the claim, noting that §206.6(f) of the Uniform Rules for the Court of Claims requires that changes of address must be communicated to the court within ten days, and that as this had not been done, the court was unable to contact counsel.

Counsel for claimants states that his last record of activity on the case is that of an October 2000 conference. He notes that thereafter, the Court’s records at the World Trade Center were destroyed on September 11, 2001, and he essentially states that the case was delayed for some time because of his involvement in other complex cases as well as personal matters. Counsel also states that he only recently learned of the dismissal order.

In any event, in view of claimants’ desire to proceed with this claim and in view of the strong public policy that cases be decided on their merits[2], I find that the dismissal of this case should be vacated. Accordingly, having reviewed the parties’ submissions,[3] IT IS ORDERED that motion no. M-70712 be granted, that this Court’s order dated February 7, 2003 and filed February 20, 2003 be vacated and that the Chief Clerk restore claim no. 94307 to the calendar.


June 28, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [2]See, e.g., Acosta v State of New York, 270 AD2d 164, 704 NYS2d 594 (1st Dept 2000).
  2. [3]The Court reviewed: claimants’ notice of motion with attached “Declaration” and undesignated exhibits; defendant’s affirmation in opposition with exhibits 1 through 3; and claimants’ affidavit in further support.