Claimant's application to vacate Decision and Order dismissing claim for failure of claimant's attorney to appear at multiple conferences is denied as both untimely and insufficient where motion was made more than one year after service of notice of entry of the challenged Decision and Order and where claimant fails to set forth any facts constituting purported law office failure and thus fails to offer a reasonable excuse for default.
|Claimant short name:||YOUNG|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||IRA C. PODLOFSKY, ESQ.|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Douglas R. Kemp, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 23, 2018|
|See also (multicaptioned case)|
Claimant moves to vacate the Court's Decision and Order, filed on November 29, 2016, which dismissed the claim based upon the failure of claimant's attorney to appear for telephone conferences scheduled for March 24, 2016, March 30, 2016, August 15, 2016, August 23, 2016 and November 17, 2016 after having been given written notice of each conference and after having been advised in writing on March 28, 2016, March 30, 2016, August 15, 2016 and August 24, 2016 that failing to appear for the scheduled conference could result in dismissal of the claim. Defendant opposes the relief requested in the motion.
The law governing claimant's application is clear:
"It is now axiomatic that the Court of Claims is authorized to dismiss a claim for failure to prosecute and deny restoration to the calendar in the absence of "good cause shown" (Court of Claims Act § 19  . . . [d]ismissal pursuant to Court of Claims Act § 19 (3) is wholly discretionary" (Dickan v State of New York, 16 AD3d 760, 761 [3d Dept 2005).
CPLR 5015 (a) provides that the Court may vacate a default order upon the ground of excusable default "if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party."
Defendant served the Decision and Order dismissing the claim, with notice of entry, on claimant by mail on December 7, 2016. On December 19, 2016, via mail and fax, claimant's attorney asked for the Court's "permission to move to vacate the dismissal." The Court responded in writing to claimant's attorney on December 21, 2016 by advising claimant's attorney that he did not need "permission to vacate the order dismissing your client's claim" and that "any such application is governed by the Court of Claims Act and Rules and by CPLR 5015."
As set forth above, defendant served the Decision and Order dismissing the claim, with notice of entry, on claimant by mail on December 7, 2016. After adding the 5 day mailing period rule of CPLR 2103 (b) (2) to claimant's time to respond, claimant was required to serve his CPLR 5015 (a) motion on or before December 12, 2017. The claimant's motion was served by mail on December 13, 2017, more than one year after the period provided for in CPLR 5015 (a) and nearly one year after the Court advised claimant's attorney in writing of the procedure governing his proposed application to vacate the default.
The motion to vacate the default is accordingly denied as untimely.
Additionally, the Court is cognizant that "[w]hile there is a preference that disputes be resolved on their merits . . . a party seeking to vacate a default judgment must demonstrate a reasonable excuse for default and a meritorious [claim] . . . It is within the sound discretion of [the court] to determine whether a sufficient showing has been made warranting the vacatur of a default judgment" (Fishman v Beach, 246 AD2d 779, 780 [3d Dept 1998]; see CPLR 5015 [a] ).
In support of claimant's application, claimant's attorney argues that the default is excusable as a consequence of law office failure. In Aaron v Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C. (12 AD3d 753, 754 [3d Dept 2004]), the court instructs that the movant "must also demonstrate that the default was not a result of willfulness and that vacating the default would not result in prejudice to [the party opposing the application]."
The Court has reviewed the affirmation of claimant's attorney and attached exhibits and the defendant's answering affirmation.
Claimant has not set forth any facts to support the conclusory allegation of law office failure (see paragraphs 12 and 20 of claimant's attorney's affirmation) and has thus failed to show a reasonable excuse for the default.
The claimant's application to vacate the Decision and Order dismissing the claim, filed November 29, 2016, is denied.
March 23, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed December 15, 2017;
2. Affirmation of Ira C. Podlofsky, dated December 5, 2017, and attached exhibits;
3. Affirmation of Douglas R. Kemp, dated February 2, 2018, and attached exhibits;
4. Letter to Court from Ira C. Podlofsky, dated December 19, 2016;
5. Letter from Chambers to Ira C. Podlofsky, dated December 21, 2016.