New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2009-016-029, Claim No. 112528, Motion No. M-76187


Synopsis


Motion to restore claim to the calendar was granted.

Case Information

UID:
2009-016-029
Claimant(s):
LERAN DAVIS
1 1.The caption has been amended to reflect that the sole properly named defendant here is the State of New York.
Claimant short name:
DAVIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole properly named defendant here is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112528
Motion number(s):
M-76187
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Scott J. Zlotolow, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Cheryl Rameau, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 21, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant Leran Davis’s motion to vacate the dismissal of claim no. 112528, which arose from a September 10, 2005 accident in which an automobile registered to the State of New York collied with claimant’s motorcycle. Pursuant to a Stipulation and Order entered into on November 30, 2006, claimant was to file his note of issue by June 4, 2007. After claimant missed that deadline, the court sent him a letter by certified mail, return receipt requested, setting a new deadline of January 11, 2008 and noting that the claim would be subject to dismissal if not filed by that date. Claimant subsequently obtained an adjournment of the deadline to March 31, 2008. When that deadline was missed, the court issued an order dismissing the claim pursuant to §19.3 of the Court of Claims Act.

In his affirmation in support of this motion, counsel for claimant states that shortly after the March 31, 2008 deadline was set, his office engaged in a series of settlement discussions with defendant, that certain discovery was accordingly adjourned, and that he thus did not file the note of issue by March 31, 2008 because of such outstanding discovery. He further explains that after settlement negotiations broke down, he inadvertently failed to request a further extension of time, and that “there was never an intention to abandon or discontinue the action.” See ¶¶11 to 16 of the January 22, 2009 affirmation of Scott J. Zlotolow, annexed to claimant’s moving papers.

In view of claimant’s professed desire to proceed with this claim and in view of the strong public policy that cases be decided on their merits[2], I find that the dismissal of this case should be vacated. Accordingly, having reviewed the parties’ submissions,[3] IT IS ORDERED that motion no. M-76187 be granted, that this Court’s Order dated May 12, 2008 and filed May 21, 2008 be vacated and that the Chief Clerk restore claim no. 112528.



May 21, 2009
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [2]See, e.g., Acosta v State of New York, 270 AD2d 164, 704 NYS2d 594 (1st Dept 2000).
  2. [3]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits A through I; and defendant’s “Reply Affirmation.”