New York State Court of Claims

New York State Court of Claims

TWINE v. THE STATE OF NEW YORK, #2009-010-026, Claim No. 91932, Motion No. M-76886


Claimant’s motion to reopen a closed claim and receive a monetary settlement award without a trial is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on claimant’s motion to reopen Claim No. 91932 and for a monetary settlement award without trial:
Notice of Motion, Claimant’s Supporting Affidavit and Exhibits, Memorandum of Law............................................................................................................................1

Attorney’s Affirmation in Opposition and Exhibits.................................................2

Claimant’s Reply......................................................................................................3

Claim No. 91932 was filed in 1995 alleging that during claimant’s incarceration, she worked in the mess hall at Bedford Hills Correctional Facility (Bedford) and sustained abdominal injuries due to defendant’s negligence and that thereafter defendant failed to provide claimant with appropriate medical treatment (Claimant’s Ex. A). Claimant, appearing pro se, signed a Preliminary Conference Order (PCO) which set forth that the Note of Issue and Certificate of Readiness would be filed on or before September 14, 1998 (Claimant’s Ex. D). The PCO was so ordered by the Court on April 9, 1998. When claimant failed to file a Note of Issue and a Certificate of Readiness, the Court scheduled a conference for April 15, 1999. Claimant failed to appear and defendant made a motion to dismiss for failure to prosecute (Claimant’s Ex. E). Defendant then sent claimant a Notice of Settlement indicating that the Court would sign an Order on April 23, 1999 dismissing the claim for failure to prosecute (id.). Claimant sent an “Affidavit Reply to Notice of Settlement Scheduled Before Hon. Ruderman on 4/23/1999” stating that claimant had never received the notice for the conference scheduled for April 15, 1999 and therefore she did not appear. Claimant also requested that the conference be rescheduled. By letter dated April 26, 1999, the Court indicated that it would not sign the Proposed Order of Dismissal because it appeared that the Court’s mailing regarding the April 15, 1999 conference had been sent to claimant’s former address due to her failure to comply with the Uniform Rules for the Court of Claims (22 NYCRR §206.6[f]) which required her to inform the court of any change of address. The conference was rescheduled for May 27, 1999. The Court further noted:
“However, the reason for the Conference of April 15, 1999 remains unchanged, that is, Judge Ruderman’s Preliminary Conference Order, filed April 13, 1998, directed claimant to file a Note of Issue and Certificate of Readiness on, or before, September 14, 1998. Claimant has failed to do so and is in default.

Claimant must address the default, or appear in Court in White Plains on Thursday, May 27, 1999 at 9:30 a.m.

Failure to do either will result in a dismissal of the claim. [emphasis in original]”

(id.). By letter dated May 24, 1999, the Court confirmed its telephone conversation with claimant regarding the scheduled conference for May 27, 1999. The letter also stated that “[f]ailure to appear will be considered a Calendar Default and will subject the claimant to a dismissal pursuant to Court of Claims Rule 206.15” (id.).

Claimant did not appear, rather she submitted an affidavit received by the Court on May 20, 1999 explaining her default and stating why she did not file a Note of Issue and Certificate of Readiness. Defendant submitted a Proposed Order of Dismissal and claimant responded by affidavit stating that she did not appear for the May 27, 1999 scheduled conference:
“for the following reasons:

(1) she chose to and did address the default by mail timely before 5/27/99 (2) that she had no intentions to ever go to trial for reasons she set forth in the seven page document and (3) that she was not going to sign a note of issue and a certificate of readiness for trial in or out of court, that the same holds true to this present day of 6/7/99.”

(id.). On June 16, 1999, the Court dismissed the claim for failure to prosecute.

Ten years after the dismissal, claimant moves to reopen her claim because, on June 2, 2009, claimant purportedly underwent abdominal surgery to repair a hernia which “had its onset April, 1994" while claimant was working in the mess hall at Bedford (Claimant’s Notice of Motion to Reopen). Claimant argues, inter alia, that her claim was improperly closed because she was not in default. Claimant seeks a “reasonable monetary settlement of the case for her prolonged pain and suffering [emphasis in original]” (id.). Claimant argues that, “[a] trial at this juncture would impose an undue hardship upon the claimant because of her advanced age and having had recent abdominal surgery. It is the contention of the claimant that a trial would not serve any useful purpose because since she had already undergone surgery for the repair of the hernia” (id.).

“A party seeking to vacate an order entered upon default is required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious cause of action” (Energy Brands, Inc. v Utica Mut. Ins. Co., 38 AD3d 591, 591-92). Even if claimant showed a reasonable excuse for the default, claimant would not be entitled to vacatur because she failed to demonstrate the existence of a potentially meritorious claim (id. at 592 [plaintiff had a reasonable excuse for default. “Nevertheless, the plaintiff was not entitled to vacatur, as it failed to demonstrate the existence of a potentially meritorious cause of action”]).

Accordingly, claimant’s motion is DENIED (CPLR 5015[a][1]; see Krisztin v State of New York, 34 AD3d 753 [Court of Claims providently exercised its discretion in denying claimant’s motion to vacate order dismissing claim as claimant failed to demonstrate a potentially meritorious claim]).

July 21, 2009
White Plains, New York

Judge of the Court of Claims