New York State Court of Claims

New York State Court of Claims
PIERCE v. THE STATE OF NEW YORK, # 2021-040-046, Claim No. 134131

Synopsis

Claim dismissed pursuant to Uniform Rules for the Court of Claims 206.10(g) for failure to appear at a Court conference.

Case information

UID: 2021-040-046
Claimant(s): JOSEPH C. PIERCE
Claimant short name: PIERCE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134131
Motion number(s):
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Robert M. Goldstein, Esq.
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Christina M. Calabrese, Esq., AAG
Third-party defendant's attorney:
Signature date: September 16, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This Claim, which was filed in the office of the Clerk of the Court on December 12, 2019, alleges that, on December 12, 2017, Claimant, then an inmate at Greene Correctional Facility, was assaulted by a named correction officer. Issue was joined when the State served and filed its Verified Answer on January 21, 2020.

On August 10, 2020, 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 December 15, 2020. A copy of the PCO was sent to Claimant's lawyer, Robert M. Goldstein, Esq., and Defense counsel, Christina M. Calabrese, Esq.

By letter dated April 7, 2021, the Court wrote to counsel reminding them that the Note of Issue and Certificate of Readiness was to be filed on or before December 15, 2020 and had not yet been filed. Claimant's counsel was directed to file the Note of Issue or advise the Court in writing why the filing had not occurred within two weeks of the date of the letter. As the Court did not receive a response to its April 7, 2021 correspondence, the Court, by letter dated April 23, 2021, scheduled a telephone conference on May 4, 2021 at 12:00 p.m. Claimant's counsel failed to appear for the May 4, 2021 conference and, by letter dated May 10, 2021, the Court scheduled a telephone conference with the parties for May 18, 2021 at 2:30 p.m. The parties 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). Both parties appeared at the May 18, 2021 conference. The Court directed the parties to enter into a stipulation extending the time to complete discovery and for Claimant to serve and file a Note of Issue and Certificate of Readiness, as the parties advised that no discovery had yet been conducted. Defense counsel stated that she would prepare the stipulation and send it to Claimant's counsel for signature. Counsel would then submit the stipulation to the Court for its consideration, to be "so ordered."

Ms. Calabrese sent the Stipulation to Mr. Goldstein, providing a courtesy copy to the Court, on May 18, 2021 by electronic mail, extending the time to complete discovery and for Claimant to serve and file the Note of Issue and Certificate or Readiness to December 31, 2021. Having not received the signed Stipulation, the Court's Principal Law Clerk called Mr. Goldstein on June 4, 2021, who advised he had just completed a criminal trial, that he would locate the Stipulation sent by Ms. Calabrese, and would send it to the Court on Monday, June 7, 2021. Again, on June 11, 2021, the Court's Principal Law Clerk called Mr. Goldstein, as the Court had not received the signed Stipulation. Counsel was not available and a voice mail message was left.

By correspondence, dated June 30, 2021, the Court scheduled a telephone conference on July 29, 2021 at 11:00 a.m., as the Court still had not received a signed Stipulation. At the July 29, 2021 conference, Mr. Goldstein stated he could not find the Stipulation and requested that Ms. Calabrese send out a new copy, stating that he would sign it and send it to the Court by August 6, 2021. On August 18, 2021, the Court's law clerk called Mr. Goldstein and left another message inquiring as to the status of the Stipulation.

By letter dated August 25, 2021, the Court related the history of this matter, beginning on May 18, 2021, as set forth above. The Court concluded the correspondence stating:

In light of the foregoing, if the Court does not receive the signed Stipulation extending the time to complete discovery and for Claimant to serve and file the Note of Issue and Certificate of Readiness by 5:00 p.m. on September 8, 2021, the Court will conduct an IN-PERSON Conference in Chambers, 150 State Street, Albany, New York, on Thursday, September 9, 2021 at 9:30 a.m.

In the event the conference in this Court is necessary, failure to appear at this conference will be considered a calendar default and will subject the defaulting party to a penalty pursuant to the Uniform Rules for the Court of Claims 206.10 (g).

The Court did not receive an executed copy of the Stipulation by September 8, 2021. On September 9, 2021, Claimant's counsel did not appear at the conference, nor did he contact the Court prior to the conference, nor has he contacted the Court since that date. Defense counsel was present.

Therefore, in accordance with the Uniform Rules for the Court of Claims 206.10(g), it is hereby ORDERED that Claim No. 134131 be dismissed based upon Claimant's failure to appear at the scheduled conference on September 9, 2021.

September 16, 2021

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims