New York State Court of Claims

New York State Court of Claims

GENCO v. THE STATE OF NEW YORK, #2007-044-541, Claim No. 107776, Motion No. None


Synopsis


Court granted defendant's oral motion to dismiss claim for claimant's failure to be present and ready to proceed at trial of claim, where such failure was not involuntary

Case Information

UID:
2007-044-541
Claimant(s):
FRANK GENCO
Claimant short name:
GENCO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107776
Motion number(s):
None
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SIVIN & MILLER, LLPBY: William C. House, Esq., Trial Counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 14, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Defendant orally moved to dismiss this claim for claimant's failure to appear at trial. Trial was scheduled for May 8, 2007 with regard to the issue of liability. On May 1, 2007, Assistant Attorney General Joseph F. Romani advised the Court and claimant's counsel that a warrant had been issued for claimant's arrest on February 22, 2007, due to his failure to report to his parole officer. Claimant's attorney simultaneously advised the Court that he had been unable to contact his client for some time. On May 8, 2007, defendant's counsel appeared and advised that defendant was ready for trial. Claimant did not appear. Claimant's counsel made an oral motion to remove the case from the calendar on the ground that claimant's failure to be present was involuntary due to his concern regarding the consequences of his appearance (i.e.: being arrested). Defendant's counsel cross-moved to dismiss the claim for claimant's failure to proceed with the trial, pursuant to Court of Claims Act § 19 (3). The Court reserved decision, and now issues this Decision and Order addressing both motions.

Claimant's counsel's request to have the matter removed from the calendar is denied, and defendant's counsel's motion to dismiss the claim is granted. Claimant's failure to be physically present and testify at trial, presumably due to his knowledge that he would be subject to the risk of being arrested should he attend, constitutes a failure to prosecute and warrants dismissal of the claim pursuant to Court of Claims Act § 19 (3) (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.15; see e.g. Shabazz v State of New York, 191 AD2d 832, 833 [1993], lv dismissed and denied 82 NY2d 736 [1993]).

Claim No. 107776 is hereby dismissed in its entirety.

June 14, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims