New York State Court of Claims

New York State Court of Claims

GILES v. THE STATE OF NEW YORK, #2006-042-502, Claim No. 110952, Motion No. M-72372


Motion made by claimant for an order vacating the dismissal of the claim and restoring the matter to the calendar. Motion was granted, the dismissal is vacated and the case is restored to the court’s calendar.

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:
Frekhtman & AssociatesBy: ARKADY FREKHTMAN, ESQ.
Defendant’s attorney:
Attorney General of the State of New York
By: THOMAS M. TRACE, ESQ.Senior Attorney
Third-party defendant’s attorney:

Signature date:
January 9, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order vacating the court’s prior order of dismissal and restoring the case to the court’s calendar. The following papers were considered by the court:
1. Notice of Motion, filed October 10, 2006
2 Affirmation of Arkady Frekhtman, Esq., dated October 3, 2006
3. Exhibits A - E, annexed to the moving papers
4. Affidavit of Lawrence Giles, sworn to October 3, 2006 (Exhibit E)
5. Opposition affirmation of Thomas M. Trace, Esq., dated October 16, 2006
6. Exhibits A - D, annexed to the opposition papers

On or about September 5, 2006 my chambers mailed written notice to both counsel that a status conference would be conducted at the Court of Claims in Utica, New York on September 21, 2006 at 11:20 a.m. and that an appearance was necessary.

While the Attorney General appeared at the aforementioned conference, there was no appearance by claimant or claimant’s counsel at the status conference. The State moved for dismissal, pursuant to 22 NYCRR 206.10 (g). The court granted the motion and dismissed the claim. The dismissal order was signed on October 5, 2006 and filed with the Clerk of the Court of Claims on October 25, 2006.

This matter now comes before the court on a motion by claimant’s counsel, pursuant to CPLR §5015 (a), Court of Claims Act § 19 (3), 22 NYCRR 202.27, and 22 NYCRR 206.15, seeking an order vacating this Court’s dismissal order of October 5, 2006 and restoring this case to active status.

In an affirmation in support of the motion, claimant’s attorney, Arkady Frekhtman, states that the failure to appear at the status conference was due to a lack of notice. Counsel elaborated that his office never received notice of the conference and stated that the failure to appear “is a result of miscommunication, clerical oversight or the fact that the Notice was lost in mail.” It was not until claimant’s counsel later contacted defendant’s counsel that Attorney Frekhtman learned that a conference had been held and the action dismissed.

Claimant’s attorney asserts that this is an “isolated incident of non-appearance”, and further, that there is no evidence that the failure to appear was wilful.

Counsel also argues that there is merit to the underlying claim militating in favor of the vacating of the order of dismissal. The claim itself states that claimant, an inmate, was injured while working in the laundry area of the New York State Department of Correctional Services’ Camp Georgetown Correctional Facility. Claimant’s affidavit in support of the pending motion indicates that on May 4, 2005, while in the process of starting an industrial washing machine - the exterior on/off switch of which had, with knowledge of defendant’s maintenance staff, been broken for some months - was instructed to place his hand in the machine and flip an inside lever. As a result, claimant sustained a significant electrical shock. It is alleged that the shock resulted in severe injuries to the claimant, including limited ability to ambulate.

Defendant’s opposition to the motion reiterates the statutory standards to be utilized by the court in its consideration of the motion and defers to the court’s discretion in deciding the motion.

Defendant does not contest, nor does the court question, based upon the evidence before me, claimant’s counsel’s allegation that the failure to appear was not wilful and resulted - for unknown reasons - from a lack of notice of the status conference.

Likewise, a review of all of the materials before me, including the exhibits, affirmations and claimant’s affidavit, indicate that this is not a frivolous matter and that there is clearly merit to the underlying claim. As noted above, the claimant states that the defendant was aware of the defect in the washing machine for months and that an employee of defendant directed claimant to take the action which appears to have caused claimant’s electrocution. The moving papers also provide medical records, albeit unsworn, documenting injury to the claimant.

This case was dismissed pursuant to 22 NYCRR 206.10 (g), which provides that:

[i]f any party fails to appear for a scheduled conference, the court may note the default on the record and enter such order as appears just, including dismissal.

Claimant cites to multiple provisions of law in support of the motion to vacate dismissal. CPLR § 5015 (a) (1) allows the court to relieve a party from the terms of an order upon the ground of excusable default. The Court of Claims Act § 19 (3) allows claims to “be restored to the calendar for good cause shown, in the discretion of the court.” Claimant also relies upon 22 NYCRR 202.27, presumably for its subdivision (c), which provides, with regard to a conference, that “[i]f no party appears, the judge may make such order as appears just.” Finally claimant calls the Court’s attention to 22 NYCRR 206.15, which provides, in relevant part to this matter, that claims shall not be restored except “by motion on notice to all other parties, supported by affidavit showing sufficient reason why the order should be vacated and the claim restored.”

The common tenor of these provisions and their case law progeny is that this ruling is in the court’s discretion, and there should be sound reason for the grant of the motion. The statutes refer to good cause shown and excusable default.

Inasmuch as the Court has never had any prior instance of this attorney’s failure to appear for any scheduled matter, I accept counsel’s allegation that he received no notice of the scheduling conference. As such, there is, under these circumstances, both good cause shown and an excusable default.

In light of the foregoing, and in light of the apparent merit to the case, it would be inequitable to punish the claimant for the seemingly inadvertent failure of counsel to attend the status conference (see, Rosenthal v State of New York, UID No. 2004-019-515). Accordingly, the dismissal is vacated and the case is restored to the court’s calendar (CCA § 19 [3]; 22 NYCRR 206.15).

January 9, 2007
Utica, New York

Judge of the Court of Claims