New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2008-044-012, Claim No. 109757, Motion No. None


Synopsis


Defendant’s motion to dismiss granted. Claimant’s failure to be physically present and testify at trial constitutes a failure to prosecute, warranting dismissal of the claim.

Case Information

UID:
2008-044-012
Claimant(s):
FELIX RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109757
Motion number(s):
None
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
ANDREW F. PLASSE, P.C.BY: Andrew F. Plasse, 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:
August 20, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant filed this claim to recover for personal injuries allegedly received when he slipped and fell in accumulated water on the floor at Sullivan Correctional Facility. Defendant State of New York (defendant) answered. Trial was scheduled for August 7, 2008 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 counsel appeared by telephone 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 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]). Accordingly, defendant’s motion is granted.

Claim No. 109757 is hereby dismissed in its entirety.


August 20, 2008
Binghamton, New York

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