New York State Court of Claims

New York State Court of Claims

FLOWERS v. THE STATE OF NEW YORK, #2006-030-546, Claim Nos. 103070, 103264, Motion No. M-71353


Synopsis



Case Information

UID:
2006-030-546
Claimant(s):
RICHARD FLOWERS
Claimant short name:
FLOWERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103070, 103264
Motion number(s):
M-71353
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
RICHARD FLOWERS, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 23, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 8, were read and considered on Claimant’s motion


to vacate the Order dismissing the within claims, and restoring them to the calendar:

1-3 Notice of Motion; Affidavit of Service; Memorandum of Law by Richard Flowers, Claimant and attachments

  1. Affirmation in Opposition by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
5-8 Filed papers: Claim No. 103070, Answer; Claim No. 103264, Answer

A review of the Clerk’s file reveals that Claim Numbers 103070 and 103264 were dismissed for a trial default on June 9, 2005, when Claimant failed to appear as scheduled for trial. [Affirmation in Opposition by Jeane L. Strickland Smith, Exhibit 3]. These claims - originally filed in calendar year 2000 - had been restored to the calendar by prior Decision and Order filed October 23, 2003, when Claimant asserted he never received the Order dismissing the claims. [ibid. Exhibit 4]. Trial of the claims had been scheduled six (6) months earlier by this Court, on January 28, 2005, when the parties were notified of the trial date by letter. [ibid. Exhibit 2]. There is no indication that the letter addressed to Claimant was returned, or otherwise not delivered.

In Claim Number 103070 Claimant seeks money damages for the alleged loss of legal papers occurring at the reception center at Downstate Correctional Facility in July 2000. In Claim Number 103264 Claimant seeks recovery for his alleged wrongful confinement for a period of twenty-nine (29) days beyond a Tier III disciplinary hearing disposition while an inmate at Fishkill Correctional Facility in July 2000.

In the present motion, Claimant addresses only the substantive aspects of these two claims, and does not at all address the default entered on June 9, 2005, or any reasons why such default should be vacated. Indeed, in reviewing the papers submitted Claimant refers to his failure to appear on February 21, 2002: the first time he defaulted in appearing for trial on these claims before a different judge. [Memorandum of Law by Richard Flowers, ¶ 8].

Court of Claims Act §19(3) provides: “Claims may be dismissed for failure to appear or prosecute or be restored to the calendar for good cause shown, in the discretion of the court.” See also Civil Practice Law and Rules §5015(a). The Court Rules applicable in the Court of Claims provide: “Whenever a note of issue has been filed and the claimant is not ready for trial or fails to appear for a scheduled trial date, or if the assigned judge has directed that the claim be ready for trial by a particular date and the defendant is ready to proceed with the trial but the claimant is not so ready, the assigned judge, upon motion by the defendant or upon his . . . own motion, may dismiss the claim unless sufficient reason is shown why such claim should not be tried at that time. An order dismissing a claim pursuant to this section or any section of this Part, or pursuant to the Court of Claims Act or the CPLR, shall not be vacated except upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, supported by affidavit showing sufficient reason why the order should be vacated and the claim restored. Such application shall be made to the judge who granted the order of dismissal . . .” 22 NYCRR §206.15.

In order to vacate such a dismissal and obtain restoration of a case to the calendar the movant must not only show that the Court abused its discretion in dismissing the claim, but that there is sufficient reason why the order should be vacated and the claim restored. See Shabazz v State of New York, 191 AD2d 832 (3d Dept 1993), lv dismissed in part, denied in part, 82 NY2d 736 (1993), rearg denied, 82 NY2d 837 (1993), cert denied, 511 US 1094 (1994); Scheckter v State of New York, 33 AD2d 1075 (3d Dept 1970).

It is the Claimant’s continuing obligation to provide the Court with notice of any address changes. See 22 NYCRR §206.6 (f).[1] With regard to the current motion, however, it appears the Court did not send notice of the trial to the correct address in January 2005. Accordingly, there is sufficient reason to restore the matter, since it appears that Claimant was not notified of the trial date at the address of record in the Office of the Chief Clerk.

Accordingly, Claimant’s motion is in all respects granted and Claims numbered 103070 and 103264 are hereby restored to the calendar.

May 23, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. The regulation provides: “Changes in post office address or telephone number of any attorney or pro se claimant shall be communicated in writing to the clerk within ten days thereof.”