New York State Court of Claims

New York State Court of Claims

DINNIGAN v. THE STATE OF NEW YORK, #2009-045-016, Claim No. 114346, Motion No. M-76111


motion to vacate dismissal of the claim pursuant to CCA § 19 and 22 NYCRR § 206.10(g).

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):

Claimant’s attorney:
Sacks and Sacks, LLP.By: David H. Mayer, Esq.
Defendant’s attorney:
Malapero & Prisco, LLP.By: John J. Peplinski, Esq.
Third-party defendant’s attorney:

Signature date:
May 11, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the court on this motion: Claimant’s Notice of Motion, Claimant’s Affirmation in Support with annexed Exhibits 1-5, Defendant’s Affirmation in Opposition with annexed Exhibits A-J and Claimant’s Reply Affirmation with annexed Exhibits 1-2.

A hearing was held on November 13, 2008 in order to afford claimant’s attorneys the opportunity to explain, inter alia, their repeated failures to appear at court conferences in this matter. Claimant’s attorneys were forewarned that a failure to appear at the hearing would result in an order dismissing the claim pursuant to Court of Claims Act § 19 and 22 NYCRR § 206.10(g). Claimant’s attorneys failed to appear at the hearing or contact the court prior to the hearing date. By order filed November 25, 2008, this court dismissed the claim without prejudice.

Claimant has presently moved this Court for an order reinstating the claim in this matter. Defendant opposes claimant’s motion.

The underlying claim in this matter allegedly stems from a motor vehicle accident that occurred on September 21, 2007 on the Southern State Parkway eastbound in the vicinity of Exit 36, 100 feet west of “Straight Path.” Claimant contends that at the time of the incident he was a Journeyman Union Ironworker by trade and had just left a separate roadway project as a passenger in a co-worker’s vehicle. The vehicle struck a separate work vehicle that was parked in the roadway causing claimant to sustain personal injuries.

Claimant’s attorney concedes that he failed to notify the Court prior to the preliminary conference date that he could not attend the conference. On the morning of the preliminary conference claimant’s attorney informed the court that he would not be attending the conference but that another attorney in his office would be available for a phone conference. Claimant’s attorney failed to get permission from the court for this arrangement prior to sending the letter. Nevertheless, a preliminary conference was held on that date with defendant’s attorney in court and claimant’s attorney present by phone. A preliminary conference order was agreed to by the parties during the conference. As part of the court’s order claimant was to provide defendant with a supplemental bill of particulars within 45 days of the preliminary conference. Claimant failed to comply with that order. Subsequently, claimant further failed to comply with various discovery requests served by defendant in this matter. Claimant also failed to appear at the next scheduled compliance conference in this action on September 18, 2008. By letter dated October 6, 2008, the court informed claimant that a hearing in this matter was being scheduled for November 13, 2008. Claimant was informed that a failure to appear at the hearing would result in the claim being dismissed. Thereafter, claimant failed to contact the court or appear at the hearing and the case was dismissed without prejudice.

Claimant contends that it never received notice of the September 18, 2008 conference, even though the conference date was scheduled during the telephone conference at which claimant’s attorney was a participant. It is noteworthy that defendant’s attorney was present for the telephone conference and was also present at the September 18, 2008 conference. Claimant also contends that he was unaware of the November 13, 2008 hearing although the court sent out correspondence to both parties informing them of the date and purpose of the hearing. Defendant’s attorney was also present at the November 13, 2008 hearing.

Claimant concedes that he did not respond to defendant’s multiple discovery requests in the Court of Claims action. Claimant seems to argue that he does not have to provide authorizations in the Court of Claims action since defendant’s counsel in the Court of Claims action is also counsel for the defendant in the Supreme Court action where authorizations have already been provided. Nevertheless, claimant has now belatedly responded to defendant’s discovery demands as part of this motion.

Court of Claims Act § 19(3) empowers the court to dismiss a claim due to claimant’s failure to appear or prosecute his action. The claim may be restored in the discretion of the court for good cause shown. 22 NYCRR 206.15 requires claimant to present sufficient reason why the order should be vacated and the claim restored. Claimant has failed to present sufficient reason for the court to restore the claim (see Shabazz v State of New York, 191 AD2d 832 [3d Dept 1993], lv dismissed and denied 82 NY2d 736 [1993], cert denied 511 US 1094 [1994]). Claimant states that he does not “even intend on moving forward with [the Court of Claims] action after receipt of paper discovery from the State with the Court’s permission. Instead, we would like to mark the case dismissed without prejudice subject to renewal upon dismissal of the Nassau County action.” Although public policy favors the resolution of claims on the merits, claimant has failed to establish that there is any merit to the Court of Claims action. Claimant has also failed to provide the court with a satisfactory explanation for his repeated failures to appear at court conferences and to timely comply with a court order in this case. Thus, it would be an improper exercise of discretion to restore the claim in this matter.

Therefore, for the foregoing reasons, claimant’s motion is denied.

May 11, 2009
Hauppauge, New York

Judge of the Court of Claims