Opinion
# 2013-041-046 Claim No. 118841 Motion No. M-83523
08-21-2013
LOUISE MEANWELL, Individually, and on behalf of Infant Child MCKENZIE BUMP v. THE STATE OF NEW YORK
Synopsis
Application to vacate order dismissing claim for repeated failure of claimants to appear for conferences is denied where affirmation of claimant's attorney fails to demonstrate a meritorious claim.
Case information
UID: 2013-041-046 Claimant(s): LOUISE MEANWELL, Individually, and on behalf of Infant Child MCKENZIE BUMP Claimant short name: MEANWELL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant (s): Claim number(s): 118841 Motion number(s): M-83523 Cross-motion number(s): Judge: FRANK P. MILANO PETER J. GLEASON, P.C. Claimant's attorney: By: Peter J. Gleason, Esq. Defendant's attorney: NONE Third-party defendant's attorney: Signature date: August 21, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Louise Meanwell (claimant) moves to vacate the Court's Order, filed September 4, 2012, which dismissed the claim. The motion is made only on behalf of claimant Louise Meanwell and does not mention the infant claimant, McKenzie Bump. Defendant has not appeared in opposition to the claimant's motion.
The claim was dismissed based upon the failure of claimants' attorney, Andrew Jones, Esq., to appear for telephone conferences on July 26, 2012, August 16, 2012 and August 23, 2012.
The claimant's motion fails to include a copy of the claim as to which reinstatement is requested and claimant's application is defective on that ground alone. This is so because, in determining a motion, the court may only consider documents and exhibits which have been served upon all parties (CPLR 2214 [c]). Significantly, the Attorney General has not appeared on the motion and has no notice of consideration of papers beyond those served on him.
In the interest of judicial economy, the Court has obtained a copy of the claim from the Court of Claims' file.
The claim appears to allege that Jacqueline Hankle (Hankle), while employed by the defendant State of New York, Division of Criminal Justice Services (DCJS), improperly accessed a DCJS criminal record database and disclosed criminal record information regarding claimant.
Court of Claims Act 19 (3) provides as follows:
"Claims may be dismissed for failure to appear or prosecute or be restored to the calendar for good cause shown, in the discretion of the court."
In Shabazz v State of New York (191 AD2d 832 [3d Dept 1993], lv dismissed in part, denied in part 82 NY2d 736 [1993], rearg denied 82 NY2d 837 [1993], cert denied 114 SCt 1858 [1994]), the court held that:
"Court of Claims Act § 19 (3) provides that '[c]laims may be dismissed for failure to appear or prosecute or be restored to the calendar for good cause shown, in the discretion of the court.' A motion to dismiss pursuant to this provision lies within the sound discretion of the Court of Claims, and the record must show an abuse of that discretion before the order of dismissal may be reversed."
In Dickan v State of New York, 16 AD3d 760, 761 [3d Dept 2005]), the court noted that:
"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 [3]."
In addition, Section 206.10 (g) of the Uniform Rules for the Court of Claims (22 NYCRR 206.10 [g]) states that:
"If any party fails to appear for a scheduled conference, the court may note the default on the record and enter such order as appears just, including dismissal."
In support of the application, claimant argues that her default is excusable as a consequence of law office failure. CPLR 2005 reminds that: "Upon an application satisfying the requirements of [CPLR] 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure."
Aaron v Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C. (12 AD3d 753, 754 [3d Dept 2004]), 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]."
Finally, the Court is cognizant that:
"While 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] [1]).
With these principles in mind, the Court has reviewed the affirmation of claimant's attorney and finds that the "law office failure" attributable to claimant's attorney satisfies the minimal level of a reasonable excuse for claimants repeated failure to appear for scheduled telephone conferences.
In particular, the Court has considered the lack of willful default or an intention to abandon the claim and the absence of any allegation of prejudice to the defendant in the event the claim is restored to the calendar.
With respect to whether the claim is "meritorious" (Fishman, 246 AD2d 779 at 780), the Court initially notes that the motion to vacate the dismissal is made nearly nine months after the filing of the Court's Order dismissing the claim. The claim itself was pending for two (2) years at the time it was dismissed, with no discovery having taken place.
The claim sought to be reinstated fails to satisfy the jurisdictional pleading requirements of the Court of Claims Act. Court of Claims Act § 11 (b) provides that:
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 [2007]). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The strict pleading requirements of Court of Claims Act § 11 (b) were reiterated in Rivera v State of New York (52 AD3d 1075 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court, quoting Lepkowski (1 NY3d at 208) reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege."
The claim fails to adequately set forth any of the information required by the Court of Claims Act, other than alleging that the claim accrued on June 3, 2010, a date subsequent to the conduct described in the Summary of Findings/Recommendations of the State of New York, Office of the Inspector General.
Claimant's application is supported only by a brief conclusory allegation by claimant's attorney stating that "there was in fact an invasion of Claimant's privacy."
In Waldron v Ball Corp. (210 AD2d 611, 613-614 [3d Dept 1994], lv denied 85 NY2d 803 [1995]), the court noted that:
"[T]here is no common-law right of action for invasion of privacy in New York. The right is statutory, having been codified by Civil Rights Law §§ 50 and 51 (see, Howell v New York Post Co., supra, at 123) and proscribes the use of a person's name, portrait or picture for advertising or trade purposes (see, Civil Rights Law § 50; Howell v New York Post Co., supra;Andrews v Bruk, 160 Misc 2d 618, 620). Clearly, that is not the situation here."
A review of the motion papers reveals two potential causes of action against defendant: one based upon the defendant's possible vicarious liability for the actions of its employee Hankle, under the theory of respondent superior; and another based upon negligence in hiring, retaining or supervising Hankle.
Claimant fails to show a meritorious cause of action based upon respondent superior. In Gray v Schenectady City School Dist. (86 AD3d 771, 773 [3d Dept 2011]), the court explained that "[d]efendant, as [Hankle's] employer, can be held vicariously liable for [her] tortious actions, but only if [she] committed them in furtherance of defendant's business and within the scope of [her] employment." There is no allegation or proof offered that Hankle's actions were done in furtherance of defendant's business.
Nor has claimant shown that a cause of action alleging negligence in hiring, retaining or supervising Hankle could be meritorious. Again, the court's decision in Gray (86 AD2d at 773) provides guidance:
"Supreme Court properly denied the part of defendant's motion seeking to dismiss the causes of action alleging negligent supervision and negligent retention . . . These claims require allegations that the defendant knew or should have known of its employee's propensity to engage in the conduct that caused the plaintiff's injuries, and that the alleged negligent supervision or retention was a proximate cause of those injuries."
Claimant's attorney asserts that "in the client file [he] has document(s) showing the State of New York had notice that Claimant's privileged records were being subjected to unauthorized access."
Unfortunately, and fatally to claimant's application, claimant's attorney has not chosen to share any such documents, or any other evidence of defendant's prior notice of Hankle's unauthorized access to claimant's records, with the Court.
For all of the foregoing reasons, the claimant's motion to vacate the order dismissing her claim is denied.
August 21, 2013
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Motion to Vacate Default Judgment, filed May 30, 2013;
2. Affirmation of Peter J. Gleason, Esq., dated May 26, 2013, and annexed exhibits.