Opinion
# 2011-040-079 Claim No. 115968 Motion No. M-80526
12-20-2011
LOBDELL v. STATE OF NEW YORK
Synopsis
Pro se Claimant's motion to restore Claim granted. Case information
UID: 2011-040-079 Claimant(s): KEVIN LOBDELL Claimant short name: LOBDELL Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115968 Motion number(s): M-80526 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Kevin Lobdell, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG Third-party defendant's attorney: Signature date: December 20, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Claimant's motion for an order restoring his Claim to the Court's calendar is granted.
Claimant filed his Claim with the Clerk of the Court on October 17, 2008. The Claim alleges that Claimant was incarcerated and received inadequate and improper medical treatment at several correctional facilities for a problem with his knee and that the surgery that was performed did not remedy the problem. The State served its Verified Answer upon Claimant on November 10, 2008 and filed it with the Clerk of the Court on November 10, 2008.
By Decision and Order dated May 14, 2009, Judge Diane L. Fitzpatrick denied Claimant's Motion to Strike Defendant's Answer and for summary judgment (Lobdell v State of New York, Claim No. 115968, Motion No. M-76202 [UID No. 2009-018-026]).
By letter dated January 13, 2010, Claimant notified the Clerk of the Court that he had been released from custody and provided his new address.
By Order of Presiding Judge Richard E. Sise dated April 29, 2010, this matter was assigned to the calendar of Hon. Norman I. Siegel.
By Order of Presiding Judge Richard E. Sise dated March 4, 2011, this matter was reassigned from the calendar of Hon. Norman I. Siegel to the calendar of the undersigned.
On March 31, 2011, the Court sent Claimant and Defense counsel correspondence scheduling a status conference by telephone on April 20, 2011 and advising Claimant to provide the Court with his daytime telephone number to facilitate his participation in said telephone conference. That letter was returned with the notation "FORWARD TIME EXP … RTN TO SEND." On April 20, 2011, the Court was unable to conduct the telephone conference because Claimant failed to respond to the Court's March 31, 2011 correspondence.
By letter dated April 22, 2011, pro se Claimant was directed to resume prosecution of the Claim and to serve and file a Note of Issue and Certificate of Readiness within 90 days of receipt of that letter or the Claim would be subject to dismissal, without further notice, pursuant to CPLR 3216. By Order dated August 25, 2011, the Court dismissed the Claim based upon Claimant's failure to respond to the Court's letter of March 31, 2011 and his failure to resume prosecution of the Claim and file the Note of Issue and Certificate of Readiness. The Court concluded that Claimant had neglected his Claim, had lost interest in prosecuting it, and dismissed the Claim (Lobdell v State of New York, Claim No. 115968 [UID No. 2011-040-047]).
Claimant now seeks to restore the Claim to the Court's calendar.
Claimant asserts that: in November 2010, Claimant's home was totally destroyed by fire, including most of his personal papers; on December 8, 2010, he was arrested on violation of his Post Release Supervision; on July 21, 2011, he sent a letter to the Court confirming his then-current mailing address at Wyoming Correctional Facility; on August 10, 2011, he received a letter from the Court's Chief Clerk, Robert T. De Cataldo, confirming receipt of his letter and stating his claim was still pending; he received a letter dated September 1, 2011 from the Chief Clerk informing him that his Claim was being dismissed based on the information in the Order attached to that letter. This was the first time Claimant became aware of the status conference that he missed on April 20, 2011 and the subsequent letter dated April 22, 2011 directing him to resume prosecution of the Claim and to serve and file the Note of Issue and Certificate of Readiness within 90 days therefrom.
The Court notes that Claimant's July 21, 2011 letter was received by the Clerk of the Court on July 28, 2011, however, neither Claimant's letter, nor the Clerk's response dated August 10, 2011, were included in Chambers' file. If the Court had received Claimant's July 21, 2011 letter in late July or early August 2011, the Court would have vacated the directive contained in its April 22, 2011 letter and directed the Clerk of the Court to restore this Claim to the pro se prisoner calendar based on the facts recited in Claimant's correspondence. The Court would not have issued its August 25, 2011 Order and this Claim would not have been dismissed.
Based upon the foregoing, the Court, pursuant to Court of Claims Act § 9(8), and in the interests of justice, vacates its prior Order dismissing the Claim for failure to prosecute, based upon Claimant's correspondence to the Court dated July 21, 2011, providing his then-current address. He has also indicated to the Court that he wishes to prosecute this Claim against the State of New York.
Therefore, Claimant's motion is granted and the Court vacates its prior Order dismissing the Claim for failure to prosecute. The Clerk of the Court is directed to restore this Claim to the pro se prisoner calendar.
December 20, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Movant's motion to restore the Claim:
Papers Numbered
Notice of Motion & Affidavit in Support 1
Affirmation in Opposition & Exhibits attached 2
Filed Papers: Claim, Answer