New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2007-042-503, Claim No. 112013, Motion No. M-72606


This motion is brought by the claimant seeking an order vacating the court’s dismissal order and restoring the case to the calendar. Claimant’s motion is granted.

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:
Defendant’s attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This motion is brought by the claimant seeking an order vacating the court’s dismissal order and restoring the case to the calendar. The following papers were considered by the court:
  1. Notice of Motion, filed January 8, 2007
    1. Affirmation of Keith Lord
    2. Exhibit A, annexed to the moving papers
  2. Letter of G. Lawrence Dillon, Esq., dated February 24, 2007
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 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 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 the claim.

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 conference.

This case was dismissed pursuant to 22 NYCRR Section 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.

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 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.

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 [3]; 22 NYCRR Section 206.15).

March 19, 2007
Utica, New York

Judge of the Court of Claims