Dismissing Claim for failure to comply with Court's prior order.
|Claimant(s):||THOMAS A. BAILEY, MD and MAXINE LYNN BAILEY|
|Claimant short name:||BAILEY|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Thomas A. Bailey, MD and Maxine Lynn Bailey, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Kevin A. Grossman, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 9, 2019|
|See also (multicaptioned case)|
On June 1, 2017, Claimants filed this Claim alleging personal injuries and loss of consortium following an incident at the State University of New York at Cortland ("SUNY Cortland") in which Claimant Thomas A. Bailey was allegedly struck in the head with a football while attending a SUNY Cortland football game.
By Order to Show Cause executed by the undersigned on August 2, 2019, Edward P. Ryan, Esq. sought to withdraw as attorney of record for Claimants in the above-referenced Claim. Defendant did not oppose the application and no response to Mr. Ryan's application for withdrawal was received from Claimants.
By Decision and Order dated September 11, 2019 and entered September 16, 2019, this Court granted Mr. Ryan's application on the condition that he, as relevant here, (1) "serve a copy of this Decision and Order with notice of entry on Claimants by certified mail, return receipt requested" on or before September 23, 2019 and file an affidavit of service with the return receipt attached and (2) "provide Claimants with a copy of his file, by certified mail, return receipt requested, or by personal service, at their last known address" on or before September 23, 2019 and "file an affidavit of compliance with the Clerk of the Court" (Bailey v State of New York, Claim No. 129774, Motion No. M-94354, Leahy-Scott, J., Sept. 11, 2019, at 4)
The Court directed Claimants to "file a Notice of Appearance by new counsel with the Clerk of the Court or notify the Clerk of the Court . . . , in writing, of their intention to proceed pro se" within 60 days of the filing of the Decision Order (id.). The Court advised that Claimants' failure "to so notify the Clerk of the Court or appear by new counsel within such 60-day period" would result in dismissal of the order "without further order of the Court" (id. at 4-5). Additionally, the Court ordered a calendar call for the above Claim for December 3, 2019 at 11:00 a.m. at the New York State Court of Claims in Syracuse, New York provided that Claimants retained new counsel or submitted a written notification of their intention to proceed pro se (see id. at 5).
On October 1, 2019, Mr. Ryan submitted an Affidavit of Compliance attesting that he (1) served a copy of the Court's September 11, 2019 Decision and Order upon Claimants at their last known address by certified mail, return receipt requested on September 18, 2019 and (2) personally served a copy of his Claim file upon Claimants on September 19, 2019 (see Aff of Compliance ¶¶ 5-6). Attached to the Affidavit of Compliance was an affidavit of service of the Decision and Order and the return receipt.
In accordance with this Court's September 11, 2019 Decision and Order, Claimants had until November 18, 2019 (60 days from the filing of the Decision and Order on September 18, 2019)(1) to file a Notice of Appearance by new counsel or submit a written notification of their intention to proceed pro se. To date, Claimants have failed to file a Notice of Appearance by new counsel or submit a written notification of their intention to proceed pro se. Additionally, neither Claimants nor a new counsel appeared at the New York State Court of Claims in Syracuse, New York on December 3, 2019. Consequently, the Claim is dismissed due to Claimants' default (see Uniform Rules for Ct Cl [22 NYCRR] § 206.15).
Accordingly, it is hereby
ORDERED that Claim No. 129774 is dismissed in its entirety.
ORDERED that service of a copy of this Order by the Chief Clerk of the Court shall be made upon Claimants by regular mail, to 1748 New Scotland Road, Slingerlands, New York 12159 within two weeks from the filing of this Order and upon Defendant by regular mail or messenger delivery, to the Office of the New York State Attorney General, within two weeks from the filing of this Order.
December 9, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
1. The sixtieth day after accrual of the claim was Sunday, November 17, 2019. Thus, Claimant had until Monday, November 18, 2019 to file a Notice of Appearance through new counsel or submit a written notification of their intention t proceed pro se (see General Construction Law § 25-a ).