New York State Court of Claims

New York State Court of Claims

ISENADY v. THE STATE OF NEW YORK, #2007-030-509, Claim No. 110423, Motion No. M-72572


Synopsis


Claimants’ motion to vacate their default and restore claim to the calendar is in all respects denied without prejudice. 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. More significantly, claimants have not at all addressed the merits of their claim, nor have they shown there would be no prejudice to the defendant based upon the restoration of a claim almost two years after it was dismissed, and four years after what factual allegations are actually contained in the claim occurred. Additionally, if this claim were to be considered for restoration, a significantly expedited disclosure schedule would be warranted, and none has been proposed.

Case Information

UID:
2007-030-509
Claimant(s):
WILNER ISENADY and WILLIAM DUNLAP
Claimant short name:
ISENADY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110423
Motion number(s):
M-72572
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
MAINETTI, MAINETTI & O’CONNOR, P.C.BY: ALFRED B. MAINETTI, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 5, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimants’ motion


for an Order restoring the within Claim:

1,2 Notice of Motion, Affidavit in Support by Alfred B. Mainetti, Counsel for Claimants and attached exhibits

3-5 Filed papers: Claim; Answer; Daily Report dated May 19, 2005

No Opposition Filed

After carefully considering the papers submitted and the applicable law the application is disposed of as follows:

On May 19, 2005 this Court dismissed the claim herein after Mainetti, Mainetti & O’Connor, Claimants’ Counsel of record, failed to appear for a court conference on May 19, 2005 that had been scheduled on notice to all parties on April 18, 2005. No request for an adjournment had been made or granted, nor had there been any other contact with the Court. The Daily Report[1] records the dismissal, and the information concerning dismissal was transmitted to the parties thereafter by letter dated June 17, 2005.

Mainetti, Mainetti & O’Connor, by Alfred B. Mainetti, have now made a motion to restore the Claim. Mr. Mainetti recites that the firm received this Court’s letter concerning the conference, and that the Preliminary Conference Order [PCO] completed by a former associate was forwarded to the Assistant Attorney General assigned to the Claim on May 5, 2005 for the Assistant Attorney General’s execution and ultimate submission to the Court. [See Attorney’s Affidavit in Support of Motion to Restore Case to Calendar by Alfred B. Mainetti, Exhibit B]. As is this Court’s practice, the letter transmitting a blank PCO for the parties’ completion provided that Counsel appear before the Court unless a PCO is submitted by a given date, here, May 19, 2005. Neither the former associate nor the Assistant Attorney General appeared or submitted the PCO as required, as noted earlier.

Thereafter, and on June 19, 2005, “it was learned” that the PCO had not been submitted, and that the claim had been dismissed. [Ibid. ¶5]. Pursuant to agreement with the Assistant Attorney General, the former associate then forwarded a stipulation for the Defendant’s execution restoring the claim to the calendar. [Ibid. Exhibit C]. The stipulation was never returned.

After the former associate left the firm, Mr. Mainetti assumed responsibility for the file, and wrote to the Assistant Attorney General on August 9, 2005, inquiring as to the status of the matter and the whereabouts of the stipulation to restore the claim. [Ibid. Exhibit D]. Since that letter was sent, “the file has been docketed for response from the Assistant Attorney General and was not followed in the mistaken belief the case was on the Court calendar and . . . [Claimants’ attorneys] would be notified of a further conference date.” [Ibid. ¶8].

More than a year later, on August 28, 2006, Claimants’ attorneys received a letter from another law firm - from the context it would appear to be from a firm involved in parallel litigation about which this Court is unaware - indicating (again) that the claim was dismissed on May 19, 2005. [Ibid. Exhibit A].

This motion to restore was submitted for the Court’s consideration on November 17, 2006 - three months after the most recent “jog” to Counsel’s memory - and was duly served upon the Attorney General’s Office on November 17, 2006. The motion has also been duly ignored by the Attorney General’s Office.

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 22 NYCRR §206.10 (g).[2] In order to vacate such a dismissal and obtain restoration of a Claim to the calendar the movant must show a reasonable excuse for the default, that they have a meritorious claim, and a lack of prejudice to the opposing party resulting from the default. See Grinkorn v Seeley, 30 AD3d 376 (2d Dept 2006), lv dismissed 7 NY3d 920 (2006); Zeltser v Sacerdote, 24 AD3d 541 (2d Dept 2005); Kumar v Yonkers Contracting Co., Inc., 14 AD3d 493 (2d Dept 2005); Cippitelli v Town of Niskayuna, 277 AD2d 540 (3d Dept 2000); see also Reyes v State of New York, UID #2006-028-523, Claim No. 110326, Motion No. M-70839 (Sise, P.J., March 9, 2006).

While clearly the attorneys for Claimants have been significantly disinterested in assuring that the Claim asserted against the State of New York be heard in this Court, the Attorney General’s Office has been just as disinterested in fulfilling its obligations as officers of the court in the first instance by failing to extend promised courtesies to opposing counsel, and in failing to appear for the State of New York in the present motion practice. By the same turn, Claimants’ attorneys have not moved to vacate their default promptly[3] and restore the claim, and have not made any additional effort to establish the merits of their claim as required upon such application. See Reyes v State of New York, supra. An affidavit from the Claimants, at a minimum, should have been submitted on this motion. See Zeltser v Sacerdote, supra at 542.[4]

Claimants assert four causes of action against the State of New York: negligence, prima facie tort, trespass to land, and nuisance, all stemming from bridge construction performed by the Department of Transportation either on State Route 208, or State Route 52 - both highways are named - in the Village of Walden, County of Orange and State of New York. [Claim No. 110423, ¶ ¶ 3, 4, 6, 7]. Claimants - who are the owners of rental property located at 154 West Main Street, in Walden, New York - assert that the construction began “on or about April 2003” and continues to the present.[5] Other than broad allegations of failure to properly handle the construction, and the loss of rental income purportedly caused by the State’s failures, no specific indication of what the State did or failed to do is set forth in the Claim. No affidavit concerning the merits of the claim has been submitted by Claimants to amplify the pleading.

Had Counsel moved promptly to vacate the default and restore the claim, the initial default would seem to be the result of a reasonable excuse. Here, however, Claimants’ attorneys did not act promptly nor did they monitor the case with any diligence, thus there is no reasonable excuse. More significantly, Claimants have not at all addressed the merits of their claim, nor have they shown there would be no prejudice to the Defendant based upon the restoration of a claim almost two years after it was dismissed, and four years after what factual allegations are actually contained in the claim occurred. Additionally, if this claim were to be considered for restoration, a significantly expedited disclosure schedule would be warranted, and none has been proposed.

Accordingly, Claimants’ motion [M-72572] to vacate their default and restore Claim number 110423 to the calendar is in all respects denied without prejudice.

February 5, 2007
White Plains, New York

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




[1]. Under Court rules, the Daily Report is an Order of the Court. See 22 NYCRR §206.10(f).
[2]. This Court rule states: “If 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.”
[3]. Indeed, if the Attorneys for the Defendant had actually served the Claimants’ attorneys with the Daily Report dismissing the claim, the present motion would clearly have been untimely since it is made more than one (1) year after the default, and it would be denied on that ground alone. See Civil Practice Law and Rules §5015 (a). On the other hand, “. . . [a] court has the inherent power to vacate a default judgment, in the interest of justice, even after the expiration of the one-year period set forth in CPLR 5015(a)(1) . . . (citations omitted).” Molesky v Molesky, 255 AD2d 821, 822 (3d Dept 1998).
[4]. In Zeltser v Sacerdote, supra, not only did the plaintiff’s attorney provide a reasonable excuse for his failure to appear at a court ordered settlement conference based upon his wife’s emergency dental treatment, substantiated by medical documentation, but he also provided an affidavit from the plaintiff setting forth facts sufficiently establishing that the action was meritorious.
[5]. The claim was filed in the Office of the Chief Clerk of the Court of Claims on January 31, 2005.