New York State Court of Claims

New York State Court of Claims

GOLDFEDDER v. THE STATE OF NEW YORK, #2007-028-532, Claim No. 103438, Motion No. M-72608


A claim dismissed pursuant to Court of Claims Act § 19(3) is restored. Except where a Claimant has failed or refused to appear at trial, it is necessary to comply with the requirements of CPLR 3216 in order to dismiss an action for want of prosecution.

Case Information

PAULINE GOLDFEDDER, as Administratrix of the Estate of ROBERT GOLDFEDDER
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:
BY: Victor J. D’Angelo, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for an order restoring Claim No. 103438:

1. Notice of Motion and Supporting Affirmation of Jeremy Schiowitz, Esq., with annexed Affidavit of Pauline Goldfedder; and

2. Affirmation in Opposition of Victor J. D’Angelo, AAG.

Filed papers: Claim; Answer; Daily Report dated December 5, 2005

This action, seeks compensation for the pain and suffering of Claimant’s decedent and his wrongful death. At the time of his death, decedent Robert Goldfedder was a patient of the Kingsbridge IRA, a community residence operated by Gateway Counseling Services in Bronx, New York. The Claim alleges that beginning in 1999, Robert was subjected to abusive treatment by the staff of the residence; that he was severely beaten by his roommate on April 21, 1999; that he was given improper medication that caused disorientation and dehydration; and that on August 17, 1999, he was allowed to wander off the premises, with his absence not being noted or reported for several hours. Robert Goldfedder was located and pronounced dead around 9:28 in the evening on August 17. Claimant, Robert’s mother, was appointed administratrix of his estate on August 24, 2000. The Claim was filed on November 28, 2000; Defendant answered and served initial discovery demands the following month.

The claim was assigned to former Judge Alton R. Waldon, Jr., and a number of conferences were held thereafter. According to defense counsel, there was a companion action in Supreme Court and no fewer than seven conferences were held in the instant action (D’Angelo affirmation, ¶ 4). On December 5, 2005, counsel appeared for another hearing and, apparently because of lack of progress on discovery, Judge Waldon granted Defendant’s motion to dismiss the case. The Daily Report signed by Judge Waldon read, in full, as follows:
At a hearing on December 5, 2005, the Court dismissed the above referenced claim without prejudice pursuant to Court of Claims Act Section 19(3). The Clerk is hereby directed to close claim number 101520.
Section 19(3) of the Court of Claims Act 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.
Claimant now moves to have her claim restored. Her counsel explains that his elderly client has been ill since December 2005 and has only recently been able to provide him with the information and materials necessary to respond to Defendant’s discovery demands. Counsel for Defendant opposes the motion, characterizing the dismissal as one for “want of prosecution,” relying on cases in which actions were dismissed pursuant to CPLR 3216. In addition to requiring that dismissal on this ground cannot be sought until a year after issue is joined, that statute also sets out a procedure that litigants, or courts, must follow:
The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.
Although section 19(3) of the Court of Claims Act provides a mechanism for dismissing claims in this Court that is separate from CPLR 3216, the Court of Claims statute has been used exclusively for situations in which a claimant fails (or sometimes refuses) to appear for regularly scheduled trial (see e.g. Shabazz v State of New York, 191 AD2d 832 [3d Dept 1993]; Scheckter v State of New York, 33 AD2d 1075 [3d Dept 1970]; Flowers v State of New York, UID #2006-030-546, Claim Nos. 103070, 103264, Motion No. M-71353 [Ct Cl May 23, 2006], Scuccimarra, J.). In other situations, for a dismissal for lack of prosecution to be “with prejudice” and thus to require a CPLR 2221 (motion affecting a prior order) or CPLR 5015 (relief from judgment or order) motion to restore the action, there must be compliance with CPLR 3216 (see e.g. Dickan v State of New York, 16 AD3d 760 [3d Dept 2005]; Vasquez v State of New York, 12 AD3d 917 [3d Dept 2004]; Nelson v State of New York, 10 Misc 3d 1061(A) [Ct Cl 2005]). The powers conferred by section 19(3) of the Court of Claims Act referenced only the discretion of the court and, consequently, the decision whether to restore an action dismissed under that provision does not have to depend on the specific factors and other requirements set forth in either CPLR 2221 or CPLR 3216.

In the instant case, Judge Waldon specifically stated that the dismissal was “without prejudice;” he did not follow or require Defendant to follow the steps outlined in CPLR 3216 to bring about a formal dismissal for want of prosecution; he expressly relied only on Court of Claims Act §19(3) as authority for the dismissal. From these facts, this Court concludes that he intended to allow the claim to be restored if and when Claimant was able to proceed. Furthermore, given the serious and tragic nature of the claim, the appearance of merit as outlined in Claimant’s affidavit, and the apparent reason for Claimant’s inactivity and Judge Waldon’s decision to dismiss the action “without prejudice,” this Court also will exercise its discretion to permit restoration of the claim.

Claimant’s motion is granted, and Claim No. 103438 is restored to the active calendar. The action will be assigned to a specific judge by the Chief Clerk, and both parties can anticipate that a scheduling conference will be held shortly thereafter.

March 5, 2007
Albany, New York

Judge of the Court of Claims