New York State Court of Claims

New York State Court of Claims

BOTZAKIS and PAMPAFIKOS v. THE STATE OF NEW YORK, #2008-041-019, Claim Nos. 098569, 098570, 098571, Motion No. M-74966


Motion to vacate the Court’s order dismissing claims for failure of claimants to be ready on trial date is denied pursuant to Court of Claims Act § 19 (3) and 22 NYCRR 206.15 where claimants fail to show good cause for failure to be trial ready .

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
098569, 098570, 098571
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
COHEN, KUHN & ASSOCIATESBy: Robert Soffientini, Esq.
Third-party defendant’s attorney:

Signature date:
July 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)
2008-041-020, 2008-041-021


Claimants move for an order “rearguing, renewing, reconsidering and/or otherwise vacating” the Court’s order, dated and filed March 7, 2008, dismissing the claims based upon claimants’ failure to be ready for trial of the claims on the scheduled trial date of February 26, 2008. These claims involve an automobile accident which occurred on February 10, 1996 on the Major Deegan Expressway in New York City. Claimants failed to file and serve timely claims as required by Court of Claims Act §§ 10 and 11 but were subsequently granted permission to file and serve late claims by a decision and order of Court of Claims Judge Alan C. Marin on June 8, 1998, who presided over the claims until they were transferred to this Court in November 2006.

The claims were filed on July 2, 1998. After the passage of more than nine (9) years, myriad court conferences and at least two scheduling orders, the Court set a date certain for trial at a conference held on September 6, 2007. The trial date of February 26, 2008 was confirmed by a letter to claimants’ attorney Barry Siskin (Mr. Siskin) and defendant’s attorney on September 13, 2007. The claims were scheduled for another conference on November 1, 2007 but Mr. Siskin failed to appear. A further conference was held on December 6, 2007 without any mention from Mr. Siskin of the need for an adjournment of trial. Mr. Siskin (as well as defendant’s attorney) failed to appear for a scheduled pre-trial conference on January 24, 2008.

On January 24, 2008, Mr. Siskin and defendant’s attorney were advised by letter from the Court that there would be no adjournment of the February 26, 2008 trial date. Nothing was heard from Mr. Siskin from December 6, 2007 until February 22, 2008 when the Court itself initiated a telephone conference with the attorneys.

During the February 22, 2008 telephone call initiated by the Court, Mr. Siskin stated that he would be making an application for adjournment of the trial, scheduled to begin four (4) days later, because one of claimants’ doctors was unable to testify due to recent surgery. When advised by the Court that the claims had been bifurcated and the trial was limited to liability issues alone, Mr. Siskin expressed surprise. The Court then explained to Mr. Siskin that the written order bifurcating the claim had been issued, after a conference involving Mr. Siskin, on April 5, 2007, more than ten (10) months earlier.

Mr. Siskin next claimed that he thought that bifurcation meant that the damages portion of the trial would immediately follow the liability stage of the trial. The Court then directed Mr. Siskin’s attention to the Court’s Order of April 5, 2007 which stated, at paragraph 1, that: “Should Claimant prove liability, the parties will be permitted further disclosure with respect to Claimants’ injuries and damages.”

Mr. Siskin next claimed that one of the claimants was in Greece and would be unable to attend the trial and that the other claimant was in suspect health. The Court reminded Mr. Siskin that the trial date had been set at a conference on September 6, 2007, with Mr. Siskin present, and that Mr. Siskin had been advised by letter on January 24, 2008 that the trial would not be adjourned. Mr. Siskin was directed (as was defendant’s counsel) that, notwithstanding the adjournment application he intended to present on February 26, 2008, the parties were to be prepared to proceed with trial on that day if the application for trial adjournment were denied.

Mr. Siskin then stated that he had not received the transcript of the December 7, 2007 deposition taken of defendant’s project manager, Mr. Kwok, and was consequently unable to prepare for trial. The deposition of Mr. Kwok was apparently the first, and only, discovery engaged in by Mr. Siskin in the nine (9) year history of the Court of Claims actions and was scheduled not through a notice to take a deposition issued by Mr. Siskin, but through the Court’s direction at an earlier conference. Further discussion during the February 22, 2008 telephone conference revealed that defendant would have Mr. Kwok present at trial on February 26, 2008 should Mr. Siskin choose to call him as a witness. (It was later indicated, during oral argument on Mr. Siskin’s application for an adjournment on February 26, 2008, that Mr. Siskin had never requested a copy of the Kwok deposition, held more than two months earlier, from the reporter, because he would have to pay for it.)

On the morning of trial, February 26, 2008, Mr. Siskin, on claimants’ behalf, made an oral application to the Court, with a number of marked exhibits, for an adjournment of the trial. Defendant’s attorney opposed the motion. The Court denied claimants’ application, stating its reasons on the record. Mr. Siskin then indicated he was unprepared for trial. The defendant stated its readiness to proceed to trial.

Defendant’s attorney, when asked if the defendant had any motion to make, moved to dismiss the claims. After hearing arguments from both parties and after exhaustively reciting the history of the pending claims, the Court granted defendant’s motion to dismiss, citing Court of Claims Act § 19 (3) and § 206.15 of the Uniform Rules for the Court of Claims (22 NYCRR 206.15). Memorializing the events of February 26, 2008, an order of this Court denying claimants’ application for an adjournment of the trial and granting defendant’s motion to dismiss the claims was signed and filed on March 7, 2008.

Mr. Siskin first argues on this motion that the Court should have adjourned the trial of the claims in order to give him more time to conduct discovery because the defendant State of New York, and the City of New York (defendant in a companion action in Supreme Court), “refused to admit any responsibility or liability for the Major Deegan in this accident.”

A primary issue in the claims was whether the City of New York or the State of New York was responsible, on February 10, 1996, for maintenance and control of the portion of the Major Deegan Expressway where the accident occurred. Mr. Siskin conducted no discovery with respect to this issue, or any other issue, from the date of filing the claims in July of 1998 until the deposition of Mr. Kwok on December 7, 2007.

Court of Claims Act 19 (3) provides as follows:
“Claims may be dismissed for failure to appear or prosecute or be restored to the calendar for good cause shown, in the discretion of the court.”
In Shabazz v State of New York (191 AD2d 832 [3d Dept 1993], lv dismissed in part, denied in part 82 NY2d 736 [1993], rearg denied 82 NY2d 837 [1993], cert denied 114 SCt 1858 [1994]), the court held that:
“Court of Claims Act § 19 (3) provides that ‘[c]laims may be dismissed for failure to appear or prosecute or be restored to the calendar for good cause shown, in the discretion of the court.’ A motion to dismiss pursuant to this provision lies within the sound discretion of the Court of Claims, and the record must show an abuse of that discretion before the order of dismissal may be reversed.”
In Dickan v State of New York, 16 AD3d 760, 761 [3d Dept 2005]), the court noted that:
“It is now axiomatic that the Court of Claims is authorized to dismiss a claim for failure to prosecute and deny restoration to the calendar in the absence of ‘good cause shown’ (Court of Claims Act § 19 [3].”
In addition, Section 206.15 of the Uniform Rules for the Court of Claims (22 NYCRR 206.15) states that:
“Whenever a note of issue has been filed and the claimant is not ready for trial or fails to appear for a scheduled trial date, or if the assigned judge has directed that the claim be ready for trial by a particular date and the defendant is ready to proceed with the trial but the claimant is not so ready, the assigned judge, upon motion by the defendant or upon his or her own motion, may dismiss the claim unless sufficient reason is shown why such claim should not be tried at that time. An order dismissing a claim pursuant to this section or any section of this Part, or pursuant to the Court of Claims Act or the CPLR shall not be vacated except upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, supported by affidavit showing sufficient reason why the order should be vacated and the claim restored. Such application shall be made to the judge who granted the order of dismissal unless he or she is no longer a member of the court, in which event application shall be made to the presiding judge.” (emphasis added).
Claimants have failed to show good cause to have the claims restored to the calendar. The absolute failure of Mr. Siskin to engage in any discovery proceedings during the nine (9) years the claims were pending, until approximately two (2) months prior to the scheduled trial date, demonstrates the meritlessness of Mr. Siskin’s trial date application for further time to conduct discovery based upon defendant’s alleged “knowing withholding of discovery over many years.” Claimants have not shown that the defendant misled them with respect to responsibility for the highway on which the accident occurred, especially since Mr. Siskin never made any discovery request of defendant before or after the Kwok deposition. Significantly, Mr. Siskin still has not produced a transcript of the Kwok deposition during which Mr. Kwok, according to Mr. Siskin, allegedly “dropped a partial liability bomb.”

Claimants’ posture, or more accurately, the posture of Mr. Siskin throughout the twelve years since the claims arose, has consistently been dilatory, evasive, potentially misleading and untimely. Claimants’ current application, adding no new information to that provided to the Court in support of the oral application for a trial adjournment made on February 26, 2008, further demonstrates this pattern of behavior.

Contrary to Mr. Siskin’s mischaracterization of the Court’s actions as directing or telling the defendant to make an application to the Court for dismissal of the claims, a review of the transcript will indicate that the Court, after denying claimants’ application to adjourn the trial and being advised of claimants’ unpreparedness to proceed to trial, inquired whether the defendant had an application to make to the Court. The defendant thereupon made a motion to dismiss the claims, which was granted. This mischaracterization further ignores that under Rule 206.15 of the Court of Claims Rules, which served as part of the basis for the Court’s dismissal of the claims, the Court had the authority, under the circumstances, to dismiss the claims sua sponte. Parenthetically, page 74 of the transcript of the February 26, 2008 proceedings, the very page containing the legal basis upon which the Court dismissed the claims, is missing from claimants’ current application to the Court. The Court’s salient statement from page 74 follows:
“The Claimants’ unpreparedness for trial today is without good cause and pursuant to Court of Claims Rule Section 206.15 and the Court of Claims Act Section 19(3), Claims 98569, 98570 and 98571 are hereby dismissed.”
Moreover, the claimants’ current application is without merit. First, it seeks, inaccurately, to equate defense litigation advocacy with misconduct and claims certain “admissions” held at a long-delayed (through inaction of Mr. Siskin) deposition demonstrate such misconduct. The application further suggests that the purported misconduct should form the basis of further discovery. The deposition (not attended by Mr. Siskin but by an associate) “admissions” are characterized by Mr. Siskin during claimants’ oral application of February 26, 2008 (pp. 28-33) thusly:
“This goes on and on. The bottom line, Your Honor, is that it was just in December of this year that the –- and – that the State, via Cohen, Kuhn and Associates produced somebody for a deposition, all right? And rather -- and at this deposition, and I – as I’ve indicated to Your Honor on Friday during the telephone conversation of which I haven’t received the transcript yet, they produced Mr. – I believe Kwack (phonetic) who somehow, and I did not do the deposition myself, my associate did, may have admitted some sort of responsibility for that roadway, after ten years ago the State of New York denied it, after the City denied it in their Answer, after the City denied it in their reply to the Notice to Admit, and it seems to me that both sets of lawyers have a responsibility to look into this, and especially the State because the State at the very, very beginning said that they were assuming the defense, and they did a deposition – they did a 50-H hearing of the plaintiffs . . . [n]ow, what I’m about to say may not be completely correct, but my recollection based upon my conversation with my associate, who is no longer in this office, was that the reason the State was responsible – oh, before that, one other thing. There also was a motion in 2005 by, I’m pretty sure Cohen, Kuhn and Associates, to dismiss the action claiming they didn’t have any responsibility. After all four of these items that I just mentioned were clearly in the file and overriding all of this, they represent nothing but Hartford cases. They’re not entitled to have any outside counsel cases. I believe the checks, I could be wrong, they are –- they are de facto, though not de jure, an arm of Hartford. And they went and made a Motion to dismiss this action saying that the State had no responsibility when there were so many questions in the file that thats also bordering on maybe fraud, maybe disingenuity, that Motion was denied. Mr. Kwack’s deposition, and what I’m about to say, I’m not 100 percent sure. This is based on a conversation between our associate and myself, is that I believe he admitted that they were doing work at the location of the accident and that there were certain admissions as to actual and/or constructive notice as to certain things. I don’t know what know what those things are because I didn’t do a deposition, that occurred prior to the date of the accident because we would, I would assume, have to prove notice too.”

Unsure even of what was said at the deposition, a transcript of which Mr. Siskin had failed to obtain prior to his oral application to the Court of February 26, 2008, (the defendant, meanwhile, had obtained a copy of the deposition transcript in advance of the trial date), these statements cannot be read to support claimants’ request for further discovery.
Second, in making such an argument, it appears to the Court claimants seek to require the defendant’s assistance in shouldering its responsibility for the burden of proving the case, when that responsibility could and should have been appropriately undertaken through the conduct of timely discovery during the nine year pendency of the claims.

Next, claimants offer no new or meritorius argument beyond that offered on the trial date. The arguments offered then, in support of an adjournment of trial, were, and the arguments offered now, in support of the application to restore the claims, are utterly without merit, never beginning to address the dispositive issues: Mr. Siskin’s failure to justifiably explain and offer sufficient excuse for claimants’ failure to be ready for trial.

All of the arguments now being made by claimants, and which were made on the trial date, could have been made and/or investigated within the course of timely discovery during the nine year pendency of the claims and certainly within the six years since the Court of Appeals shed legal light upon the critical legal issue germane to this case, the legal responsibility for the maintenance of portions of the Major Deegan Expressway as between the City and State of New York.

To this day, claimants have failed to address, let alone demonstrate, good cause to excuse their long-standing and unexcused failure to be ready for trial. The simple fact remains that on the day of trial, the defendant was prepared, the claimants were unprepared, and the claimants, consistent with their prosecution of these claims for nearly ten years, failed to provide good cause demonstrating entitlement to the trial adjournment and further failed to provide good cause excusing their lack of readiness for trial.

Mr. Siskin’s many assertions, often not germane to the motion’s dispositive issues, instead tending to confuse or obfuscate, are neither persuasive nor legally sufficient.

Mr. Siskin has produced no proof that either claimant was ill or out of the country on the date of the trial nor has he provided any proof of the merit of the claims against the defendant, instead relying upon twelve (12) year old notices of claim filed against the non-party City of New York which allege that the accident was caused “by the negligence of the City of New York.”

Mr. Siskin further offers the baseless argument that the Court lacks authority under § 206.15 of the Uniform Rules for the Court of Claims to dismiss the claims because Mr. Siskin did not file a note of issue. Mr. Siskin asserts that a claim cannot be dismissed for failure to proceed at a scheduled trial date unless a note of issue has been filed.

Contrary to Mr. Siskin’s wish, Rule 206.15 specifically acknowledges the Court’s authority to dismiss a claim when the “judge has directed that the claim be ready for trial by a particular date and the defendant is ready to proceed with the trial but the claimant is not so ready.” In this case, the Court directed on September 6, 2007 that the claim be ready for trial on February 26, 2008. Defendant was prepared for trial on the scheduled date and claimants were not.

Beyond misapprehending the Rule, to adopt Mr. Siskin’s reasoning would enable an inattentive or non-diligent party to be forever insulated from otherwise inexcusable failure to prosecute, and a resultant dismissal of the claim, by simply never filing a note of issue. This unlikely conclusion, specious on its face, is neither the intended result of the Rule, nor an accurate analysis or application of it. Protecting inexcusable neglect by reason of previous neglect, would equate to favoring the “orphan” who has done in his parents.

Claimants’ motion to vacate the Court’s order of March 7, 2008 dismissing the claims is denied.

The motion also fails as a request for reargument and/or renewal. Initially, it is noted that a motion to reargue is “made on the papers submitted on the original motion” (Phillips v Village of Oriskany, 57 AD2d 110, 113 [4th Dept 1977]). Claimants have not included “the papers submitted on the original motion” for an adjournment in their motion papers and the Court is not required to obtain the original papers from the Clerk’s office (Sheedy v Pataki, 236 AD2d 92, 97-98 [3d Dept 1997], lv denied 91 NY2d 805 [1998]). Additionally, the Court may only consider documents and exhibits which have been served upon all parties (CPLR 2214 [c]). Claimants have neither served nor submitted the papers that were considered in the prior order.

Aside from this procedural infirmity, “[i]t is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision” (Peak v Northway Travel Trailers Inc., 260 AD2d 840, 842 [3d Dept 1999]).

Claimants have not shown that the Court “overlooked or misapprehended” the relevant facts or law in its prior decision and order (see CPLR 2221 [d] [2]). Claimants’ assertion that the Court lacked authority to dismiss the claim because a note of issue had not been filed is not only legally incorrect but cannot be a basis for reargument since claimants failed to raise that issue on the original motion (DeSoignies v Cornasesk House Tenants' Corp., 21 AD3d 715 [1st Dept 2005]).

Claimants’ application cannot succeed as a motion to renew “inasmuch as no new facts, unknown at the time of the original motion, were presented in support thereof” (Matter of Thornton & Naumes LLP (Athari Law Office), 36 AD3d 1057 [3d Dept 2007]).

Claimants’ motion is in all respects denied.

Finally, the Court finds Mr. Siskin’s comments in support of the instant application and in support of his oral application of February 26, 2008, concerning the conduct and truthfulness of defendant’s attorney, in particular accusing counsel of an “outright lie to this Court,” of “fraudulent comments” and of “nothing less than fraud,” to be abjectly inaccurate, reckless, shameless and utterly without support in the record.

July 8, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimants’ Notice of Motion, filed May 20, 2008;
  2. Affirmation of Barry Siskin, dated May 2, 2008, together with annexed exhibits;
  3. Affirmation in Opposition of Robert J. Soffientini, dated May 15, 2008;
  4. Reply Affirmation of Barry Siskin, dated June 10, 2008.