Nelson v State of New York

[*1] Nelson v State of New York 2005 NY Slip Op 52060(U) [10 Misc 3d 1061(A)] Decided on September 29, 2005 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 29, 2005
Ct Cl

LOUIS NELSON, Claimant(s)

against

THE STATE OF NEW YORK, Defendant(s)



105990



Claimant's attorney: Michael Braunsberg, Esq.

Defendant's attorney: Eliot Spitzer, Attorney General

by Gwendolyn Hatcher, Assistant Attorney General

Thomas H. Scuccimarra, J.

Recitation:

The court read and considered the following papers on claimant's motion for an order vacating the prior order of the court, filed March 4, 2005, dismissing the claim for failure to prosecute: Notice of Motion, Affirmation and Exhibit, Affirmation in Opposition and Exhibit.



Text of the decision:

The instant claim, which alleges negligence in connection with claimant's medical [*2]treatment in the state correctional system, was filed on April 29, 2002, following claimant's successful application, pro se, for permission to late file (M-64634, Mignano, J., decision and order filed April 10, 2002). After claimant successfully pursued disclosure proceedings (see M-66178, Mignano, J., decision and order filed February 24, 2003), claimant's counsel filed a notice of appearance on July 28, 2003 and the claim was assigned to this court's calendar.

A preliminary conference was held at which it was determined that claimant would provide a bill of particulars and then be deposed and that a note of issue would be filed by September 1, 2004. No note of issue was filed, nor was any request for an extension of time received by the court. Accordingly, claimant was directed, pursuant to CPLR 3216, to resume prosecution of the action and file a note of issue within 90 days of counsel's receipt of the notice, which was sent certified mail, return receipt requested as required by statute (CPLR 3216[b][3]).

When the court's certified mailing was returned to the court by the postal service, marked "unclaimed," the court checked the Unified Court System's on-line attorney directory [FN1] to see if perhaps counsel had moved his office and neglected to inform the court, but the address there was the same as on the notice of appearance. Accordingly, the claim was dismissed for want of prosecution (CPLR 3216[a]).

Claimant now moves to vacate the order of dismissal and restore the claim to the calendar. The standard applicable to such motions is clear:

Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff should have complied with the notice by filing a note of issue or should have moved, before the default date, either to vacate the notice or extend the 90-day period (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2002], lv denied 100 NY2d 502 [2003]; Raffa v Cook, 289 AD2d 385 [2001]; Wechsler v First Unum Life Ins. Co., 295 AD2d 340 [2002]). The plaintiff failed to do so. Accordingly, to avoid dismissal, the plaintiff was required to demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice and the existence of a meritorious cause of action . . . (Brown v World Financial Properties, Inc., 306 AD2d 303, 304; see also Dickan v State of New York, 16 AD3d 760).

The instant motion is supported only by counsel's affirmation, barely a page and a half long, in which counsel (1) states that he did not receive the court's directive to file a note of issue because it was returned as "unclaimed," (2) requests that the directive be remailed (or offers to appear before the court to obtain a copy) and (3) requests that under these circumstances, the order of dismissal be vacated.

Claimant's papers do not address any of the salient issues; e.g., (1) What efforts have been made, since the February, 2004 conference, to comply with the court's directions and prepare the claim, which was filed three and one-half years ago, for trial? [FN2] (2) How is it that the note of issue deadline passed without apparent notice on the part of counsel? (3) Exactly what has been done [*3]and what remains to be done to prepare the claim for trial, should the court exercise its discretion to restore? (4) What are the merits of the claim? (5) Why did counsel refuse to accept the court's mailing?

While an attorney's failure to receive a notice or directive from the court can be considered a reasonable excuse in this context even though such failure was totally counsel's fault (see e.g. Adamo v State of New York, 13 AD3d 472), in this case, counsel's complete failure to even discuss the circumstances or, most important, address the merits of the claim, precludes such a conclusion.

Notwithstanding the policy principles in favor of resolution of litigation on its merits and not penalizing litigants for the faults of their counsel, principles with which this court agrees, it would not be a proper exercise of the court's discretion to restore the claim on the totally inadequate papers currently before the court. Accordingly, the motion is denied.

Appendices: Footnotes

Footnote 1:http://portal.courts.state.ny.us/pls/portal30/internetdb_dev.menu_internetdb.show

Footnote 2:The court's file contains various demands served and filed by defendant one week after the conference but does not contain any responses from claimant.