FARRELL v. THE STATE OF NEW YORK, #2007-030-505, Claim No. 107707, Motion No.
Claimants’ motion to vacate their default and restore claim to the
calendar is in all respects denied without prejudice. Claim dismissed almost one
year before present motion, and after failure to resume prosecution in response
to 90-day letter sent pursuant to CPLR §3216. Claimant did not monitor the
claim with any diligence, nor did counsel move promptly to vacate the default
and restore the claim. The default is not due to any reasonable excuse. No
adequate showing of merit. While attesting to a willingness to have a monetary
sanction now imposed for the inattention, Claimant does not provide any
indication of a willingness to now file a note of issue, or exactly what
discovery, if any, is needed at this juncture to pursue this Claim, and have it
heard on the merits.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
ROURA & MELAMEDBY: JOHANNA C. ABREU, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
CLERKIN, REDMOND, RYAN, PERRY & GIRVAN, LLP, OF COUNSEL
BY: ROBERT D. MARTIN, ESQ.
January 22, 2007
See also (multicaptioned
The following papers were read and considered on Claimant’s motion to
default and to reinstate her claim:
1,2 Notice of Motion to Vacate Default, Affirmation in Support of Motion by
Johanna C. Abreu, Esq. of Roura & Melamed, Attorneys for Claimant and
3,4 Affirmation in Opposition by Robert D. Martin, Esq., of Kral, Clerkin,
Redmond, Ryan, Perry & Girvan, LLP, Attorneys for Defendant and attached
exhibits; Memorandum of Law
Reply Affirmation in Support of Motion by Johanna C. Abreu, Esq.
6-8 Filed papers: Claim, Answer; Order of Dismissal, Farrell v State of New
York, Claim No. 107707 (October 20, 2005, Scuccimarra, J.)
In her claim Janine Farrell alleges that on May 15, 2002 at approximately 6:20
a.m. she was driving her vehicle in one of two Manhattan bound High Occupancy
Vehicle [HOV] lanes entering on the Gowanus Parkway approximately 1500 feet
from the toll booths of the Brooklyn Battery Tunnel when a metal object was
propelled up from the roadway by another vehicle traveling in front of her,
striking and breaking the windshield of her car, and hitting Claimant in the
face, ultimately rendering her unconscious. [Claim No. 107707, ¶¶ 3,
4]. She further alleges that she sustained serious personal injuries.
A Notice of Intention to file a Claim was served upon the Office of the
Attorney General on or about August 12, 2002. The Claim itself was personally
served upon the Office of the Attorney General on May 5, 2003, and filed in the
Court of Claims on that same day. Issue was joined on or about June 3, 2003 by
service of the Defendant’s Answer. Third-Party Defendants were impleaded
on or about August 18, 2003 by service of a Third-Party
, seeking a declaratory judgment.
Present Counsel for the State of New York was substituted for the Office of the
Attorney General on January 21, 2004 when a Consent to Change Attorney form was
filed in the Office of the Chief Clerk of the Court of Claims.
On March 24, 2004, a preliminary conference was held in regard to this Claim.
At the conference it was noted that a Supreme Court action against the
contractor and the City of New York had also been commenced, and that the
parties hoped to coordinate disclosure in that regard. In addition to scheduling
depositions, and the direction that Claimant provide authorizations by April 10,
2004, Claimant also agreed to provide a Bill of Particulars and respond to
outstanding demands by April 20, 2004. Claimant also agreed to serve a
disclosure demand by April 20, 2004 to which Defendant was required to respond
within thirty (30) days. A Note of Issue was to be filed by April 1, 2005.
[See Daily Report dated March 24, 2004].
The Third-Party action was discontinued with prejudice by Stipulation of
Discontinuance filed on April 2, 2004 in the Office of the Chief Clerk of the
Court of Claims.
Although in her Affirmation Counsel for Claimant indicates that a Bill of
Particulars was served [See Affirmation in Support of Motion by Johanna
C. Abreu, Esq., ¶14, Exhibit I] as were responses to State demands, these
documents do not appear to have been filed with the Clerk’s office as
required. [See 22 NYCRR §206.5(c)]. Similarly, Counsel for the
State does not appear to have filed either a Demand for Authorizations or a
Notice for Discovery and Inspection it apparently served upon the
Claimant’s attorneys. [See Affirmation in Opposition by Robert D.
Martin, Esq., ¶9, Exhibit A]. Although Counsel for Claimant seems to have
ignored the timetable set and also has not responded to the Defendant’s
missive, it is notable, too, that Counsel for the State did not follow up on
these requests until almost a full year later, in March 2005. [See ibid.
¶11, Exhibit B].
In the interim, according to Claimant’s attorney - who essentially
admits that she ignored the demands and the foregoing timetable set by the Court
- she was “occupied in the Supreme Court action in attempting to obtain
all of Ms. Farrell’s medical records for use in both actions. In
addition, . . . [she] was attempting to locate the brake pad that the police had
vouchered to produce for discovery and inspection by all parties in both actions
. . . ” among other things. [Affirmation in Support of Motion by Johanna
C. Abreu, Esq., ¶15]. There was motion practice in the Supreme Court case.
[Ibid. ¶16]. Additionally, Counsel for Claimant asserts that there
was a stay in effect in the Supreme Court action, as well as in this action,
based upon the filing of a Chapter 11 Bankruptcy petition by Grace Industries,
Inc., one of the Defendants in the Supreme Court action, and submits an
incomplete copy of a Notice to Creditors concerning the due date for filing
proofs of claim with the United States Bankruptcy Court for the Eastern District
of New York. [Ibid. ¶16, Exhibit L]. Counsel indicates she
“notified the State’s attorney” of this “stay.”
This Court has no record of any communication concerning a stay.
In sum, Counsel for Claimant concentrated on the matters proceeding in Supreme
Court and Counsel for the Defendant let matters proceed accordingly. No Note of
Issue was filed on April 1, 2005, nor was any request for an extension of time
received by the Court. Accordingly, Claimant was directed pursuant to Civil
Practice Law and Rules §3216, to resume prosecution of the action and file
a note of issue within ninety days of counsel’s receipt of the notice,
which was sent certified mail, return receipt requested as required by statute.
Civil Practice Law and Rules §3216(b)(3). When Claimant’s attorney
was served with this Court’s demand, dated May 5, 2005, she did nothing
as far as this Court was aware, although she now contends she was in
“discussions” with the State’s attorney. [See Affirmation in
Support of Motion by Johanna C. Abreu, Esq., ¶17]. When she was served on
October 24, 2005 with a copy of this Court’s Order dismissing the Claim by
Order filed October 20, 2005, she did nothing. The present motion to vacate the
default and restore the claim is made almost a full year after the claim was
dismissed. Notably, although Claimant asks for reinstatement of the Claim and
that a monetary sanction be imposed in lieu of the dismissal extant, there is no
indication that she intends to now file a note of issue, nor is there any
indication that more discovery is owed or demanded.
Discussion and Conclusion
This is not the time, as the Claimant’s attorney appears to urge, to
consider whether dismissal pursuant to Civil Practice Law and Rules
§3216(b) is appropriate. The time to present such concerns was in May 2005,
when Counsel was advised to proceed or earn dismissal of the Claim. Indeed,
having been served with the 90-day notice pursuant to Civil Practice Law and
Rules §3216, Claimant should have either complied with the notice, or
timely moved to vacate the notice or extend the
period. See Brown v World Financial
, 306 AD2d 303, 304 (2d Dept 2003). “CPLR 3216 is, by
its terms, ‘extremely forgiving’ in that it never requires, but
merely authorizes, the . . . Court to dismiss a plaintiff’s action based
on the plaintiff’s unreasonable neglect to proceed (CPLR 3216 [a], [e];
Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-505 [1997
Di Simone v Good Samaritan Hosp., 100 NY2d 632 
While the statute prohibits the . . . Court from dismissing an action based on
neglect to proceed whenever the plaintiff has shown a justifiable excuse for his
or her delay, and a meritorious cause of action (see CPLR 3216[e]; Di
Simone v Good Samaritan Hosp., supra) such a dual showing is not strictly
necessary in order for the plaintiff to escape such a dismissal (see
Baczkowski v Collins Constr. Co., supra at 503-505).”
Davis v Goodsell, 6 AD3d 382, 383-384 (2d Dept 2004); see also
Zito v Jastremski, ___AD3d ___, 825 NYS2d 255 (2d Dept 2006).
Now Claimant’s arguments should more properly be addressed to whether
of the Court’s Order of Dismissal filed more than one (1)
year ago is warranted, in more rigorous consideration of whether there is a
justifiable excuse for the default, and whether Claimant has a meritorious cause
of action. Clearly, no excuse other than inattention to pursuing this Claim is
offered. While Counsel states that she was communicating with the State’s
attorney on or about May 11, 2005, and advised counsel that “claimant
could not consider discontinuing her case against the State without first
deposing the State’s engineer on the Gowanus
, . . . [and] we were in a difficult
position because the stay of the Supreme Court action prevented us from
conducting further discovery relating to both actions. At that time, the City
had still not produced the brake pad for inspection by plaintiff and the State
and would not do so until May 18, 2006,” this Court’s direction to
resume prosecution was ignored. [See
Affirmation by Johanna C. Abreu,
Esq., ¶18]. At a minimum, Counsel’s conduct is discourteous. More
harshly, Counsel appears to have viewed this Court’s communications or
directions as mere suggestions, to be ignored at will.
The stay of the Supreme Court action was lifted according to Claimant’s
counsel on November 29, 2005, but the action “did not actually resume
until a compliance conference was held on March 13, 2006 . . . ”
[Affirmation by Johanna C. Abreu, Esq., ¶19]. It is also notable that
between the March 2004 conference in this Court, and the “stay”
commencing in either December 2004 or February 2005 - different times for the
commencement are asserted - Claimant does not appear to have attended to any
demands in this Claim. While Counsel indicates that discovery was ongoing and
that the brake shoe that now, in theory, is what struck Claimant’s
windshield, was only inspected in May 2006, she does not rebut the Attorney for
the State’s contention that the State was never notified of its
availability for inspection, saying somewhat circuitously that the Claim had
been dismissed thus the State was not apprised of this inspection. [See
Reply Affirmation in Support by Johanna C. Abreu, Esq. ¶4; Affirmation in
Opposition by Robert D. Martin, Esq., ¶23].
Nonetheless, if a claim is meritorious, the Court may be hard pressed to do
other than allow its consideration on the merits, since such disposition is
favored, in the absence of prejudice to the State. Counsel for the State
indicates that the State has been lulled into a false sense that the matter was
resolved. Given the time frame herein, this Court cannot help but agree. This
Claim was dismissed in October 2005 and counsel was served with a copy of such
dismissal at that time. The stay that supposedly chilled all action was lifted
in November 2005. Counsel for Claimant contends that she did not act during the
“nine-month period following the compliance conference [in the Supreme
Court action] on March 13, 2006 . . . [because] discovery was still pending in
the Supreme Court action, and claimant still had to await and evaluate
outstanding discovery from the City of New York in order to determine whether to
continue the instant action.” [Reply Affirmation by Johanna C. Abreu,
Esq., ¶5]. Whether and to what degree Counsel for the State of New York
was made privy to these post-dismissal ruminations is not clear from the
papers. Indeed, Counsel for the State may well have continued to participate in
conversations with Counsel for the Claimant after the dismissal of this claim.
In terms of merit, what has Claimant offered to establish that the State should
be held liable for her injuries? There is a paucity of case law to guide the
Court as to what burden this Claimant has to sustain in order to establish that
her claim is meritorious in the face of her otherwise inexcusable default.
Claimant suggests that the standards applicable for summary judgment should
maintain. Counsel for the Defendant - although noting that this standard has
not been met - furnishes the Court with a list of supermarket cases involving
the lack of notice when what is at issue is a highway accident, and possible
negligent failure to maintain the roadway, and applicable notice requirements
associated with that kind of negligence. In terms of Claimant’s showing
however, first, although State responsibility for the maintenance of arterial
highways within the City of New York is generally shared pursuant to Highway
Law §§349-c, 349-f, neither attorney has even brought the statutes up
or indicated whether they are indeed applicable or not. Second, no copy of the
contract by which the State supposedly contracted with Grace Industries Inc.
and/or El Sol for the renovation work on the bridge nearby has been submitted by
Claimant. Only partial transcripts of depositions taken in the Supreme Court
action have been submitted, with a notable lack of pedigree information in one
Affirmation in Support by Johanna C. Abreu, Esq., Exhibit
B] and the only mention of the State of New York was in the deposition testimony
of an employee of the construction contractor, wherein he repeats that the State
inspector was there every day to review the daily status of the opening and
closing of the HOV lane, and to direct whether things needed to be cleaned up
Affirmation in Support by Johanna C. Abreu, Esq., Exhibit C], and
in the deposition testimony of the individual whose employer was
. Exhibit B].
Claimant herself does not recall much of the accident according to the (again)
partial transcripts of the 50-H hearing and the deposition taken without the
State present. [See id
. Exhibits A and E].
Finally, while attesting to a willingness to have a monetary sanction now
imposed for the inattention, Claimant does not provide any indication of a
willingness to now file a note of issue, or exactly what discovery, if any, is
needed at this juncture to pursue this Claim, and have it heard on the merits.
Based upon this presentation, the motion by Claimant to vacate this
Court’s Order of Dismissal is in all respects denied without prejudice to
a timely and properly supported application for same.
January 22, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. The named Third-Party Defendants were:
Admiral Insurance Co., Zurich American Insurance Company of Illinois, Great
American Insurance, Lockton Companies of New York, Crawford & Company, Grace
Industries, Inc., United States Fidelity and Guaranty Company, St. Paul Fire and
Marine Insurance Company.
. See Vasquez v State of New
, 12 AD3d 917 (3d Dept 2004), where the Claimant acted
expiration of the 90-day period.
. There is no indication that such deposition
was ever noticed or pursued.
.Sherry Johnson would appear to be an employee
of the City of New York in some capacity, although the pedigree portion of her
testimony - and pockets of other pages too - is not included. Additionally, her
testimony is to the effect that the City of New York had maintenance
responsibilities including cleaning along the Gowanus Parkway. [See
Affirmation in Support of Motion by Johanna C. Abreu, Esq., Exhibit B, pp.