On or about September 5, 2006 my chambers mailed to both counsel in this case
notice that a status conference would be conducted at the Court of Claims in
Utica, New York on September 21, 2006 at 10:25 a.m. and that an appearance was
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 Section 206.10 (g). The
Court granted the motion and dismissed the claim. The Court’s 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
seeking an order vacating this Court’s dismissal order of October 5, 2006
and restoring this case to the Court’s calendar.
Claimant’s attorney states that he can find no correspondence from either
the court or the defendant advising him of the status conference date of
September 21, 2006.
Counsel also argues that there is merit to the underlying claim, militating in
favor of the vacating of the order of dismissal. Counsel asserts that claimant,
an inmate, was injured by a fall in the gymnasium at the Riverview Correctional
Facility in Ogdensburg, New York, and that the fall resulted in a severely
fractured ankle. It is alleged that claimant fell as a result of water on the
gymnasium floor, that guards were present in the gymnasium for a basketball game
prior to his arrival in the gymnasium and that guards remained in the gymnasium
after his arrival. It is claimant’s contention that had the guards been
properly supervising the gymnasium, they would have corrected the wet conditions
on the floor before allowing more inmates into the gymnasium following the
aforementioned basketball game.
The defendant submitted no formal opposition to the motion. Rather, a letter
from defense counsel was submitted to the court taking issue with the merit of
Nonetheless, I am satisfied by a review of all of the materials before the
court that there is arguably merit to the underlying claim.
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 resulted - for unknown reasons - from a lack of notice of the status
This case was dismissed pursuant to 22 NYCRR Section 206.10 (g), which provides
[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
CPLR Rule 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 Section 19
(3) allows claims to “be restored to the calendar for good cause shown, in
the discretion of the court.” 22 NYCRR Section 206.15 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 with the court’s discretion, and there should be sound reason
for the grant of the motion. The statutes refer to good cause shown and
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.
Additionally, based upon the facts reviewed previously, there is arguably merit
to the case.
In light of the foregoing, 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, Claim No.
105222, Motion No. M-67867). Accordingly, the dismissal is vacated and the case
is restored to the court’s calendar (CCA Section 19 ; 22 NYCRR Section