New York State Court of Claims

New York State Court of Claims
KESICK v. THE STATE OF NEW YORK, # 2021-040-032, Claim No. 128633

Synopsis

Claim dismissed, as pro se Claimant failed to appear at two conferences, pursuant to the Uniform Rules for the Court of Claims 206.10(g).

Case information

UID: 2021-040-032
Claimant(s): In the Matter of the Claim of RICHARD KESICK
Claimant short name: KESICK
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128633
Motion number(s):
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Richard Kesick, Pro Se
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
Third-party defendant's attorney:
Signature date: July 29, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant filed a Claim in the office of the Clerk of the Court on October 5, 2016. He then filed an Amended Claim in the office of the Clerk of the Court on February 2, 2018, which alleges that Claimant sustained injuries as a result of an alleged slip and fall at Washington Correctional Facility on May 1, 2015 due to an unsafe and hazardous shower floor (Amended Claim, 5). Issue was joined when the State served and filed its Verified Answer on December 21, 2016. The Answer to the Amended Claim was served and filed on February 13, 2018.

On February 1, 2017, the Court "SO ORDERED" a Preliminary Conference Order (hereinafter, "PCO") directing the parties to complete discovery and for Claimant to serve and file a Note of Issue and Certificate of Readiness on or before November 1, 2017. A copy of the PCO was sent to Claimant's then-lawyer, James M. Vandette, Esq., and Defense counsel, Michael T. Krenrich, Esq. On January 11, 2018, the Court "SO ORDERED" a stipulation of the parties extending Claimant's time to file the Note of Issue and Certificate of Readiness to June 1, 2018.

Thereafter, Mr. Vandette, Claimant's counsel, moved, by Order to Show Cause, to be relieved as counsel due to differences that developed between Claimant and counsel as to how to proceed with the prosecution of this matter. By Decision and Order, dated January 24, 2019, the Court noted that Claimant did not raise any objection to Mr. Vandette's withdrawal. The Court granted the Motion, allowing Mr. Vandette to withdraw as Claimant's lawyer and directing Claimant to advise the Court by August 1, 2019 if he obtained new counsel, was proceeding pro se, or wished to withdraw the Claim (Kesick v State of New York, UID No. 2019-040-004 [Ct Cl, McCarthy, J., Jan. 24, 2019]).

By letter dated December 19, 2019, the Court wrote to Claimant at 1248 Electric Avenue, Apt. B, Lackawanna, New York 14218, and scheduled a status conference by telephone for January 22, 2020. Claimant was directed to provide the Court with his daytime telephone number to facilitate Chambers' initiation of the conference call. A copy of the letter was sent to Defense counsel. Claimant provided the Court with his telephone number and a conference was conducted on January 22, 2020. Claimant advised the Court and Defense counsel that he would be withdrawing the Claim. By correspondence dated February 24, 2020, and sent to Claimant at the address set forth above, the Court reminded Claimant that he advised that he would be withdrawing his Claim at the January 22, 2020 conference and that he was advised that he had to do so in writing. The Court requested that he provide that letter as soon as possible. On March 10, 2020, the above letter was returned to the Court by the U.S. Postal Service with the preprinted notations "RETURN TO SENDER," "INSUFFICIENT ADDRESS," "UNABLE TO FORWARD."

By correspondence dated March 29, 2021, and sent to Claimant at the address set forth above, the Court scheduled a telephone conference by telephone on the record for June 10, 2021. Claimant was directed to provide the Court with his daytime telephone number to facilitate Chambers' initiation of the conference call. A copy of the letter was sent to Defense counsel. On June 21, 2021, the above letter addressed to Claimant was returned to the Court by the U.S. Postal Service with a handwritten notation in black marker "Return to Sender Does NOT Live Here!" Claimant did not appear at the conference, nor did he contact the Court. The Court called Claimant at the telephone number he provided for the January 22, 2020 conference. The Court received a recorded message that voicemail for this number was not set up. Defense counsel was present.

By correspondence dated June 10, 2021, and sent to Claimant at the address set forth above, the Court again scheduled a telephone conference by telephone on the record for July 27, 2021. Claimant was directed to provide the Court with his daytime telephone number to facilitate Chambers' initiation of the conference call. A copy of the letter was sent to Defense counsel. The parties also were advised that failure to appear at the conference would be considered a calendar default and would subject the defaulting party to a penalty pursuant to the Uniform Rules for the Court of Claims 206.10(g). On June 21, 2021, the above-addressed letter to Claimant was returned to the Court by the U.S. Postal Service with a handwritten notation in black marker "Does NOT Live Here!" "Return To Sender!" Claimant did not appear at the conference, nor did he contact the Court. The Court called Claimant at the telephone number he provided for the January 22, 2020 conference. The Court received a recorded message that voicemail for this number was not set up. Defense counsel was present.

Claimant has failed to advise the Court in writing, if he retained counsel, would be appearing pro se, or would be withdrawing the Claim, as directed in the Court's Decision and Order dated January 24, 2019 and the Court's letter dated February 24, 2020, and failed to appear at Court conferences as set forth above. Defense counsel was present for both conferences.

Therefore, in accordance with the Uniform Rules for the Court of Claims 206.10(g), it is hereby ORDERED that Claim No. 128633 be dismissed based upon Claimant's failure to appear at scheduled conferences on June 10, 2021 and July 27, 2021.

July 29, 2021

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims