New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-013-048, Claim No. 105385, Motion No. M-75367


Synopsis



Case Information

UID:
2008-013-048
Claimant(s):
MARK JOHNSON, a/k/a WILLIAM UTSEY
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105385
Motion number(s):
M-75367
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
THE BERKMAN LAW OFFICE, LLCBY: STEPHEN D. PERLMUTTER
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 14, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On October 22, 2008, the following papers were read on motion by Claimant for an order vacating dismissal of the claim and related relief.

Notice of Motion, Affirmation and Exhibits Annexed


Opposing Affirmation and Exhibits Annexed


Reply Affirmation

Upon the foregoing papers, this motion is denied.

By notice of motion filed with the Clerk of the Court on July 24, 2008, and served by mail upon the Defendant on July 14, 2008, Claimant seeks an order pursuant to CPLR 5015 and CPLR 2004 vacating the dismissal of this claim filed on August 2, 2007, and related relief. The motion was made returnable on September 17, 2008, and the Defendant filed its opposing affirmation on September 5, 2008. At the Claimant’s request, this matter was adjourned on September 15, 2008 until October 22, 2008. Claimant’s timely reply affirmation was filed on October 14, 2008.

The history of this claim and the relief sought warrant an extensive recitation of prior motion practice and the journey which necessitates the instant motion.

In a decision and order filed on January 13, 2005, I summarized the nature of the claim and procedural history regarding scheduling orders, noting that on March 25, 2004 I directed Claimant’s counsel to resume prosecution by serving and filing a note of issue and certificate of readiness (CPLR 3216[b][3]) within 90 days or face dismissal of the claim for want of prosecution (CPLR 3216[a]).[1] Claimant’s counsel dutifully filed a note of issue on June 17, 2004, with the certificate of readiness, which caused the Defendant to file Motion No. M-68695 to strike.[2] In granting that motion, I made my sentiments known:


While Claimant’s counsel has demonstrated a blatant disregard of my scheduling order and made disingenuous assertions in the certificate of readiness and generally demonstrated a degree of contempt for the Court’s authority, I will not, at this time, impose any sanctions on him. Counsel’s future conduct and his compliance with future orders will guide any reconsideration of this question.


A little more than one year later, on March 6, 2006, Claimant filed Motion No. M-71365 seeking to amend the amended preliminary conference order of February 10, 2005, relief that was granted conditionally and otherwise denied.[3]

The amended scheduling order of February 10, 2005, issued only after conferring with Claimant’s counsel, had been ignored with impunity. Once again I was forced to recite a litany of excuses proffered by Claimant’s counsel, including a mischaracterization of a determination of a summary judgment motion in a related Supreme Court proceeding in Wyoming County. Of significance in the motion of March 2006, was Claimant’s counsel’s mistaken affirmation that “[a]t no time was a 90-day notice served on this case.” I observed then and again today, that on March 25, 2004, counsel was served with the first 90-day notice to file a note of issue and certificate of readiness.

Nonetheless, after the February 10, 2005 scheduling order, counsel did absolutely nothing more than send a letter on February 25, 2005 to the Defendant, and apparently abandoned pursuit of the instant claim until more than one year later when, on March 6, 2006, Motion No. M-71365 was filed.

I found Claimant’s counsel’s actions unbelievably and indefensibly deficient, particularly given the forewarning in Motion No. M-68695 about the possible imposition of sanctions. I imposed a fine of $750.00 for counsel’s ongoing contemptuousness and cavalier lack of respect of this Court, which was duly paid to the Lawyers’ Fund for Client Protection of the State of New York (see, State Finance Law §97-t).

Thereafter, after a preliminary conference held on June 21, 2006, with local counsel appearing on behalf of Mr. Berkman, a new amended preliminary conference order dated June 22, 2006, was issued (Exhibit A to Defendant’s opposing affirmation), directing, inter alia, the filing of a note of issue and certificate of readiness on or before February 15, 2007.

With nary a word from Claimant or his counsel, despite the peradventures reviewed above, nearly two months after the court-ordered February 15, 2007 deadline had expired, I issued a second CPLR 3216 90-day notice on April 9, 2007 to resume prosecution, and noting that “[i]f there are any unresolved issues preventing [counsel] from filing the Notice of Issue and Certificate of Readiness, please advise” (Exhibit L to Claimant’s motion papers). By letter dated May 23, 2007, Claimant’s counsel wrote to the Defendant, with a copy to the Court, seeking to have Defendant contact his office with “your availability to hold depositions and the names and addresses of your designated doctors, so that discovery could be completed within the 90-day time frame in order to prevent [dismissal]” (Claimant’s Exhibit M).

There was no further communication to the Court from either party. Accordingly, on July 24, 2007, some 100 days after written confirmation of receipt of the second 90-day notice to resume prosecution, Claim No. 105385 was dismissed for the failure to prosecute.

On August 9, 2007, Claimant’s counsel wrote to the Court seeking reconsideration of dismissal and the grant of an extension of time to file the note of issue (Claimant’s Exhibit O). I responded on August 10, 2007, that:

Court-ordered deadlines have meaning. This claim has been dismissed and any further proceedings in this matter must proceed by formal motion practice or appeal.


That brings us to the instant motion filed with the Clerk on July 24, 2008, the one-year anniversary date of dismissal.[4] Counsel recites the allegations that Claimant, then an inmate in the custody of the Department of Correctional Services (DOCS) was a passenger in a van owned by the Defendant and that he was injured in a motor vehicle accident in a collision involving two other non-State vehicles. While counsel ascribes the accident and Claimant’s injuries to have been caused “solely and wholly, through and by reason of the negligence, carelessness and recklessness of the Defendant, by and through its agents, servants and/or employees” (unnumbered paragraph, p. 4 of counsel’s affirmation), it is affirmed that an “action was instituted against the owners and operators of the non-State vehicles in Supreme Court ... and ultimately disposed of by settlement to which all non-State parties were contributors” (unnumbered parenthetical paragraph on p. 5 of counsel’s affirmation).

There is a seeming incongruity of alleging that the injuries were caused “solely and wholly” by the culpable conduct of the Defendant State of New York, yet referencing a settlement contributed to by all non-State parties, to wit, the owners and operators of the other two vehicles involved in the accident. Query: why would such parties contribute to a settlement when Claimant alleges, in his moving papers today, only the whole and sole culpable conduct of the State of New York? This clearly undermines Claimant’s arguments espousing a meritorious claim. In any event, neither CPLR 5015 nor CPLR 2004, upon which Claimant relies here, references meritoriousness as the basis for judicial review.

Claimant’s counsel relies heavily on his May 23, 2007 letter (Claimant’s Exhibit M) as evidencing a response to the invitation to advise me “[i]f there are any unresolved issues preventing [counsel] from filing the Note of Issue and Certificate of Readiness” (Exhibit L to Claimant’s motion papers). Claimant’s letter was addressed to the Defendant, and, as noted above, seeks only to arrange dates for depositions and a possible independent medical examination. If one were to read only the Claimant’s moving papers one would think that the Defendant stonewalled, was recalcitrant and was unable to produce the witnesses in a timely fashion to meet the 90-day note of issue deadline.

But the Defendant demonstrates the converse. In an October 27, 2006 letter (Defendant’s Exhibit C), it provided a verified bill of particulars, and a copy of its demand for a bill of particulars and other demands, and includes counsel’s availability for depositions during the week of December 4, 2006, noting the necessity of answers to its demands prior to the depositions. Defendant reiterated the same predeposition discovery demand in its letter of April 25, 2007 (Exhibit D), as well as referencing the Claimant’s failure to have provided the pleadings and depositions from the companion Supreme Court action.

Claimant finally supplied his discovery responses, dated May 8, 2007, and provided all pleadings pertaining to the companion Supreme Court action by Fed-Ex on May 11, 2007. He blames the Defendant for its recalcitrance in the production of its witnesses for deposition until August 6, 2007, noting that the depositions took place after the claim had been dismissed on July 24, 2007, but before either party had received notice thereof on August 7, 2007.

I will digress here for a moment from my chronological recitation, to address Claimant’s somewhat galling insinuation, repeated at least twice in his affirmation and reply affirmation: “[N]onetheless, the Court, sua sponte, dismissed Claimant’s claim pursuant to CPLR 3216.” This of course implies that the Court dismissed the claim without any prior notice to Claimant. Nothing could be further from reality. I quote from the second CPLR 3216 90-day letter:

If a Note of Issue is not filed within that time, the Court will, without further notice, dismiss the claim for want of prosecution (CPLR 3216[a]) [emphasis supplied].


Indeed, one might posit that rather than a supposed sua sponte unilateral action by the Court, it is the Claimant and his counsel who defaulted despite written notice of the Court’s demand to continue prosecuting the claim. Not only did Claimant and his counsel fail to comply with a written notice to resume prosecuting the claim, they defaulted on even contacting the Court directly prior to dismissal.

Furthermore, Claimant affirms that “[i]n light of the fact [sic] that Claimant’s failure to file his Note of Issue pursuant to the Court’s directive of April 9, 2007, was substantially due and owing to the failure of the Defendant to schedule the depositions of its witnesses within the time frame established by the Court,” he sought a stipulation to vacate the dismissal, an invitation that was declined (see unnumbered paragraphs on pp. 7-8 of Claimant’s counsel’s affirmation). To the extent that Claimant implies Defendant’s unwarranted obstruction in declining to stipulate to vacate the default by relying upon Vehicle and Traffic Law §1104, such a position is clearly arguable (see e.g. Christopher v State of New York, UID #2008-031-036, Claim No. 108185, Motion Nos. M-74989, CM-75067, July 11, 2008, Minarik, J.; accord Pacheco v State of New York, UID #2007-009-044, Claim No. 113861, Motion Nos. M-73766, CM-73877, Jan. 3, 2008, Midey, J.),[5] and, in any event, the demurral of the Defendant from entering into such a stipulation has no bearing on the instant motion.

Claimant had not even responded to Defendant’s discovery demands until May 7, 2007, despite the clear precondition for responses before depositions could be conducted. Moreover, in June 2007, Defendant had offered dates for depositions and memorialized Claimant’s failure to acknowledge or respond (Defendant’s Exhibit E).

So there is a clear pattern of Claimant’s counsel blaming the Court for a sua sponte dismissal, and blaming the Defendant for stonewalling and recalcitrance in scheduling the depositions. There is no contriteness or acknowledgment of Claimant or his counsel’s possible responsibility for the situation in which he now finds himself.[6] It is, in my opinion, further evidence of his feckless professional conduct over the past several years.

This bewildering silence comes in the face of two earlier motions where counsel’s behavior in ignoring the Court’s deadlines and orders was overtly highlighted and was accompanied by a sanction.

Claimant has reminded the Court of the strong public policy favoring resolution of matters on the merits, a principle which this Court vigorously supports. Claimant asserts that he has a reasonable excuse for his default, all of which he lays at the feet of the Defendant’s scheduling impediments, and offers his letter of May 23, 2007 (Claimant’s Exhibit M) as making the Court “aware of the fact that Claimant was experiencing scheduling difficulties with regard to the depositions of the State employees” (unnumbered paragraph on unnumbered p. 2 of Claimant’s reply affirmation). No reading of that letter, even extending reason to the outer edges of reality, intimates that there were “scheduling difficulties.” No doubt Claimant was aware of scheduling deadlines, but the letter neither impliedly or implicitly addresses scheduling difficulties.

Even if one could extrude such an inference, it does not explain why no letter was directed to the Court expressing such concerns, or why Claimant failed to communicate directly with the Court until after the dismissal order was entered. Claimant has no excuse, reasonable or otherwise, for his failure.

Claimant brings the Court’s attention to the amendment to CPLR 205(a), effective July 7, 2008, nearly one year after the dismissal here, which now requires a court to set forth the specific conduct constituting the neglect and the general pattern of delay in proceeding with the litigation. While not statutorily obligated to do so, the laborious and painful history of the delay and neglect of the prosecution of this matter has been detailed above, and is intended to comply with the spirit of Chapter 156 of the Laws of 2008, and to allow a comprehensive examination of the reasons for my denial of this motion by what I anticipate is an inevitable appellate review.

Even Claimant’s argument with respect to the meritorious nature of his claim is belied by his assertion of the State’s sole culpability for the accident and injuries, yet his settlement with all other owners and operators of the two non-State vehicles involved in the accident.

While it may not be fully analogous to the issue at bar, the Court of Appeals decision in Brill v City of New York, 2 NY3d 648, 650, addressed the timing of summary judgment motions “that ignores statutory law, disrupts trial calendars, and undermines the goals of orderliness and efficiency in state court practice.” In examining what constitutes good cause for the delay in making such motion, the Court held, at page 652:

We conclude that “good cause” in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion--a satisfactory explanation for the untimeliness--rather than simply permitting meritorious, nonprejudicial filings, however tardy.... No excuse at all, or a perfunctory excuse, cannot be “good cause.”

The proffered excuse is perfunctory at best, and at worst is hollow and devoid of merit. I therefore find it unnecessary to address the Defendant’s assertion of prejudice due to the retirement of Correction Officer Mruzik after August 6, 2007.

Accordingly, based upon the above, and due consideration of the papers before me, the motion is denied.


November 14, 2008
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1] The first CPLR 3216 90-day notice.
  2. [2] So that any anticipated appellate review hereof will have a complete record, the Decision and Order in Motion No. M-68695 (UID #2004-013-062) is appended hereto and made part hereof.
  3. [3] The Decision and Order in Motion No. M-71365 (UID #2006-013-015) is appended hereto and made part hereof.
  4. [4]The instant motion is timely as CPLR 5015(a)(1) allows it to be made within one year of service of the underlying order, which was not filed by the Clerk until August 2, 2007.
  5. Decisions and selected orders of the New York State Court of Claims are available on the Internet at
  6. [6]“[T]he main stumbling block to the filing of the Note of Issue was the failure of the Office of the Attorney General to agree to deposition dates which would have permitted upon such filing” (unnumbered paragraph p. 8 of Counsel’s affirmation in support).