New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2006-036-563, Claim No. 111801, Motion No. M-72158


Motion to restore claim to calendar is denied without prejudice because the motion papers do not adequately address the issue of merit.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Gwendolyn Hatcher, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 3, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for an order restoring the claim to the court’s calendar. [1] The claim was dismissed, pursuant to Rule 206.10(g) of the Uniform Rules for the Court of Claims, in an order dated June 21, 2006 after claimant’s counsel failed to appear for a preliminary conference. The first time claimant failed to appear for a preliminary conference – May 24, 2006 – the court telephoned counsel, was advised that there had been a clerical oversight in the office, and rescheduled the conference for June 21. When, again, there was no appearance for claimant, the claim was dismissed.

In the underlying claim, claimant alleges she was injured while working on a State construction job when she was struck by the bucket of a backhoe, implicating sections 200, 240 and 241 of the Labor Law and (unspecified) provisions of Rule 23 of the Industrial Code. In support of the application to restore, counsel argues that his failure to appear for the second conference was not intentional nor a “product of sloth,” but rather the result of an inadvertent mistake in sending an attorney to the wrong court. The application is also supported by an affidavit from claimant in which she states that while working, she was struck by the bucket of a backhoe and that she has been advised by her attorney, and she believes, that she has a good cause of action. There is no discussion of why claimant and counsel believe she has a good cause of action – no recitation of the specific facts or explanation of why such facts would or could equate to a violation of the Labor Law or of a specific portion of the Industrial Code.

A proper application to be relieved from a default and to restore a claim under these circumstances addresses two factors: the reason for the default and the merits of the claim. Although counsel adequately addresses the former factor, the merits of the claim are ignored, except for the meaningless conclusory statement that counsel advised claimant she has a good cause of action and claimant believes it.

With respect to the reason for the default, it is clear that it was the result of law office failure and confusion. Although counsel does not believe that the inattention shown to this file may be characterized as “sloth,” the court is not so sure it agrees. Nevertheless, the court does agree with the public policy of this State to resolve legal disputes on the merits, wherever possible, and to avoid penalizing litigants for the mistakes of their attorneys. Notwithstanding the court’s agreement with that policy, to hold that claimant met her burden on this motion by simply submitting an affidavit stating she believes she has a good cause of action, without explanation, would make a mockery of the requirement that the underlying merits of an action be addressed before relieving a party of its default.

Accordingly, the motion is denied without prejudice to a further motion made upon proper papers, which shall include an affidavit from claimant describing the factual details underlying her claim and an explanation from claimant, counsel or an expert of the basis for the contention that the State is responsible for a violation of some portion of the Labor Law and some specifically-identified portion of the Industrial Code. Only on that basis can the court conclude that claimant possesses an arguably meritorious cause of action and should be allowed to proceed notwithstanding her counsel’s errors.

Assuming claimant can make the requisite showing, the court would be inclined to grant the application to restore, but only conditioned upon reimbursement of defense counsel for the efforts expended in attending two conferences that could not be held and preparing papers on two motions that should never have been necessary. Defense counsel should address this issue in any responding papers should claimant make a further motion. On these papers, the motion is denied.

November 3, 2006
New York, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion, Affirmation and Exhibits, defendant’s Affirmation in Opposition and Exhibits and claimant’s Reply Affirmation and Exhibit.