Motion to vacate order dismissing claim pursuant to §19.3 of the Court of Claims Act was granted.
|Claimant short name:||LITTLE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Hach & Rose, LLP
By: Philip S. Abate, Esq.
|Defendant's attorney:||Robin, Harris, King & Fodera
By: Hendrick Vandamme, Esq.
|Third-party defendant's attorney:|
|Signature date:||April 28, 2010|
|See also (multicaptioned case)|
Claimant Suzanne Little moves to vacate this Court's Order dated October 16, 2009, which states as follows:
A conference on this case was scheduled for August 4, 2009 at 11:00 a.m. Counsel for defendant appeared, but no appearance was made on behalf of claimant. The court then sent a letter to both parties rescheduling the conference for October 15, 2009 at 11:00 a.m. Again, counsel for defendant appeared, but no appearance was made on behalf of claimant. In view of the foregoing, IT IS ORDERED that claim no. 113434 be dismissed pursuant to §19.3 of the Court of Claims Act.
In her underlying claim, Ms. Little alleges that on May 12, 2005, she tripped and fell as she exited an elevator in the New York Psychiatric Institute at 1051 Riverside Drive in Manhattan because the elevator had "misleveled approximately 6 inches below the level of the . . . floor . . ."
In order to prevail on this motion, claimant must demonstrate two factors: (1) a reasonable excuse for the default; and (2) that she has a meritorious claim. See, e.g., Perez v New York City Housing Authority, 290 AD2d 265 (1st Dept 2002), which notes the "preference for disposition of cases on the merits . . ."
As to excuse, counsel explains that "[d]ue to a clerical error," the August 4, 2009 conference date was not entered into his office's calendar. He further explains that his office was unable to locate the Court's letter rescheduling the conference for October 15, 2009. Counsel for defendant maintains that on both conference dates, he called the offices of claimant's counsel, but claimant's counsel states that "no one at my firm has any recollection of receiving these phone calls." In that regard, counsel submits the affidavit of a paralegal at his office who is responsible for scheduling. She states that she did not receive any calls from defense counsel on August 4 or October 15, and that if she had, it would have been her practice to "sen[d] an email to all attorneys and attach . . . the email to the client's file. No such email[s] could be located." See exhibit D to claimant's reply papers.
As to the merit of Little's claim, she submits the deposition transcript of Charles Booth of Fujitec America, a defendant in a companion action Supreme Court, New York County, who testified as to a proposal to New York Psychiatric Institute to perform work to "enhance the leveling quality of the elevator . . ." See exhibit F to claimant's moving papers and exhibit C to claimant's reply papers.
In view of the foregoing, I find that claimant has satisfied the standard for vacating the Court's order of dismissal. Accordingly, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-77595 be granted, that this Court's Order dated October 16, 2009 and filed October 28, 2009 be vacated, and that the Clerk of the Court restore claim no. 113434 to the calendar.
April 28, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: claimant's notice of motion with "Attorney Affirmation" and exhibits A through G; defendant's "Opposition to Plaintiff's Motion to Vacate Default Judgment" with exhibits A through C; and claimant's reply papers entitled "Attorney Affirmation" with exhibits A through D.