New York State Court of Claims

New York State Court of Claims

CROSS v. THE STATE OF NEW YORK, #2007-044-562, Claim No. 107630, Motion No. None


Synopsis


Court granted the State’s oral motion to dismiss for claimant’s failure to be present and ready to proceed at trial of claim, after 30-day adjournment in which claimant’s counsel was unsuccessful in his attempts to locate claimant.

Case Information

UID:
2007-044-562
Claimant(s):
TERRY A. CROSS
Claimant short name:
CROSS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1. The Court has, sua sponte, amended the caption to reflect the State of New York as the proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107630
Motion number(s):
None
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SMYK & FITZGERALD, LLPBY: Stephen D. Smyk, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 31, 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 June 6, 2007 with regard to the issue of liability. Defendant's counsel appeared and advised that defendant was ready for trial. Claimant himself did not appear. Claimant's attorney appeared and advised the Court that he had been unable to contact his client for some time, despite having sent letters to the claimant's last known address, and leaving telephone messages at the number given to him by his client.

Defendant moved to dismiss the claim for claimant's failure to proceed with the trial, pursuant to Court of Claims Act § 19 (3). Claimant's counsel requested that the Court grant an adjournment to allow him time to attempt to locate claimant. The Court granted the request for an adjournment, requesting that claimant's counsel advise the Court within 30 days regarding whether claimant had been located, and further advising that the Court would dismiss the claim at the end of that period unless good cause was shown for claimant's failure to attend the trial.

Claimant's counsel has advised the Court, by letter dated July 12, 2007, that his efforts to locate claimant have been unavailing. Consequently, defendant's motion to dismiss the claim is granted. Claimant's failure to be physically present and testify at trial 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. 107630 is hereby dismissed in its entirety.

July 31, 2007
Binghamton, New York

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