Opinion
# 2011-040-041 Claim No. 113045 Motion No. M-79716
07-21-2011
MAJA SCHUTT v. STATE OF NEW YORK
Synopsis
State's motion to dismiss for failure to prosecute is conditionally granted. Case information
UID: 2011-040-041 Claimant(s): MAJA SCHUTT Claimant short name: SCHUTT Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 113045 Motion number(s): M-79716 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Maja Schutt, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Kimberly A. Kinirons, Esq., AAG Third-party defendant's attorney: Signature date: July 21, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's motion to dismiss the Claim for failure to prosecute pursuant to Court of Claims Act § 19(3) is conditionally granted.
The Court sets forth the history of the Claim:
Pro Se Claimant filed a Claim with the Clerk of the Court on November 27, 2006;
By Decision and Order dated May 8, 2007, this Court stated that Claimant established that she mailed the Claim to Defendant on February 7, 2007 by certified mail, return receipt requested. Defendant admitted that the Claim was received on February 9, 2007. Thus, the Court vacated an Order to Show Cause that the Claim was served upon Defendant.
On July 3, 2007, the Law Office of Miriam C. Healy filed a Notice of Appearance as Counsel for Claimant with the Clerk of the Court;
By Decision and Order dated September 13, 2007, this Court: (1) denied Defendant's motion to dismiss the Claim pursuant to CPLR 3211; and (2) granted Defendant's motion for an extension of time to serve and file a Verified Answer to the Claim; the Court also denied Claimant's cross-motion: (1) for a default judgment; and (2) for leave to serve and file an Amended Claim; additionally, the Court granted Claimant's request to serve and file a late Claim pursuant to Court of Claims Act § 10(6);
Defendant served a Verified Answer upon Claimant on or about November 1, 2007 and filed it with the Clerk of the Court on November 5, 2007;
Thereafter, on or about December 11, 2007, Defendant served upon Claimant a Verified Answer to Amended Claim. It was filed with the Clerk of the Court on December 14, 2007.
The Court has no record of an Amended Claim being filed by Claimant.
On or about the same date, Defendant served a Notice of Examination Before Trial upon Claimant.
By Decision and Order dated May 9, 2008, the Court granted Claimant's counsel's motion to withdraw pursuant to CPLR § 321(b)(2). The Court noted in its Decision that no preliminary conference order setting a discovery timetable had been issued by the Court and that no discovery had taken place. The Court directed Claimant to obtain new counsel or advise the Court that she would be appearing pro se within 90 days of the filing of that Decision and Order.
By letter dated July 30, 2008 and received by the Court on August 18, 2008, Claimant requested additional time to find counsel;
By Daily Report dated September 5, 2008, the Court granted Claimant's request and extended Claimant's time to advise the Court if she had obtained counsel to November 12, 2008;
By Decision and Order dated January 23, 2009, the Court denied Claimant's motion seeking poor person status and assignment of counsel;
By Decision and Order dated July 9, 2009, the Court denied Claimant's motion to amend her Claim seeking to add a cause of action for punitive damages as punitive damages are not allowed to be assessed against the State;
By letter dated August 12, 2009, the Court established a Preliminary Conference by telephone to be held on September 30, 2009;
The Preliminary Conference was held as scheduled and the Court directed, by Daily Report dated September 30, 2009, that Claimant was to respond to the State's Demand for a Bill of Particulars by January 30, 2010(2) and advised the parties that Defense Counsel was to notify Claimant and the Court on or before March 1, 2010 if the State wished to depose Claimant and that Claimant was to make herself available for the deposition within a reasonable time thereafter (Ex. D attached to Motion);
By letter dated February 16, 2010, Defense counsel notified Claimant and the Court that the State wanted to depose Claimant "on a date that is convenient to [Claimant]" (Ex. F to Motion);
By letter dated March 30, 2010, the Court advised the parties that a status conference would be held by telephone on May 26, 2010;
By letter dated April 7, 2010 and received by the Attorney General on April 20, 2010 (Ex. E attached to Motion) and by the Court on April 23, 2010, Claimant advised Defense counsel and the Court that she would know the "exact date of my appearance at the end of May 2010 but no [later] than the middle of June 2010."
By Daily Report dated May 26, 2010, the Court noted that, during the telephone conference held that same date, the Court directed Claimant to contact Defense counsel prior to June 30, 2010 and "provide dates that she is available for deposition in Autumn 2010." The Court scheduled an additional status conference for December 14, 2010;
By telephone, the parties scheduled Claimant's deposition for November 30, 2010; however, shortly before the scheduled date, Claimant contacted Defense counsel and cancelled the deposition as she had another matter pending which had to be resolved prior to her appearance at the deposition in this matter (Kimberly A. Kinirons' Affirmation in Support of Motion, ¶ 6);
The Court held the telephone conference on December 14, 2010. As stated in the Court's Daily Report issued following the conference:
… the Court was advised that the parties had agreed that the deposition of Claimant was to be held on November 30, 2010 but that, several days prior to that date, Claimant requested an adjournment so that she could attend to other litigation she had in Europe.
The Court noted that this Claim was filed in November 2006 and is one of the oldest cases on the Court's calendar.
The Court directed that Claimant's deposition take place on or before March 31, 2011 . The Court further directed Claimant to provide Defendant, in writing (with a copy to the Court), at least six separate business dates that she is available for deposition. The written communication is to be received by Defendant and the Court on or before January 14, 2011 . Defendant is then to advise Claimant and the Court in writing of the date selected for the deposition.
The Court advised the parties that NO FURTHER EXTENSION applications will be entertained by the Court regarding the holding of Claimant's deposition. If Claimant does not present herself for the taking of her deposition on or before March 31, 2011 , the Court will entertain a motion to dismiss for failure to prosecute.
Once the Court is advised that the parties have agreed to a date for Claimant's deposition, it will schedule another status conference to be conducted by telephone. (see Ex. H attached to State's Motion [emphasis in original]);
By Notice dated January 4, 2011 and received by Defendant on January 11, 2011 (see Ex. I attached to State's Motion), Claimant advised that she was available to be deposed between March 27, 2011 and March 31, 2011;
By letter dated January 13, 2011, Defense counsel advised Claimant that she received Claimant's Notice and, based upon Claimant's availability, Defendant scheduled Claimant's deposition for March 28, 2011 at the Office of the Attorney General in Hauppauge, New York at 10:00 a.m. (see Ex. J attached to State's Motion);
By letter dated January 19, 2011, the Court scheduled another status conference by telephone for March 1, 2011 at 11:30 a.m. (see Ex. K attached to State's Motion);
As Claimant did not appear at the conference, by letter dated March 3, 2011, the Court rescheduled the conference for April 7, 2011 at 11:30 a.m. (see Ex. L attached to State's Motion);
On March 24, 2011, Claimant telephoned Defense counsel and advised counsel that she was not going to appear for her deposition on March 29, 2011. She inquired if the State would depose her over the telephone. Defense counsel advised her that Defendant had a right to depose her in person and would not consent to a telephone deposition (Kinirons' Affirmation in Support, ¶ 9); and
The April 7, 2011 telephone conference was held and Claimant stated she was unable to appear for her deposition because of litigation in a European court. Defense counsel stated she had already prepared and mailed this Motion seeking dismissal.
Court of Claims Act § 19(3) provides, in pertinent part, that a Claim may be dismissed for failure to appear or prosecute, in the discretion of the Court.
Defendant argues that the Claim is more than four years old and Claimant has failed to appear for a deposition on two scheduled dates and has not complied with this Court's orders (Kinirons Affirmation, ¶¶ 2, 10).
In opposition to the motion, Claimant asserts that her proceeding in the European Court of Human Rights was supposed to have been concluded in December 2010. She further asserts that the proceeds from that proceeding are needed to finance her trip to the United States (Claimant's Notice of Opposition, unnumbered p. 1). Claimant also requests that her deposition be taken over the telephone or that Defense counsel travel to Slovenia, where Claimant lives, and take her deposition at the United States Embassy (id., unnumbered p. 2).
This Claim was filed more than four and one-half years ago, and, as Defense counsel states, no deposition has yet been held. The Court is of the opinion that it has exercised great forbearance with Ms. Schutt, as she is proceeding pro se and lives overseas, and, thus, the Court extended the time established for her to appear for deposition. The Court was very clear at the December 14, 2010 conference and in its Daily Report memorializing that conference, stating:
The Court advised the parties that NO FURTHER EXTENSION applications will be entertained by the Court regarding the holding of Claimant's deposition. If Claimant does not present herself for the taking of her deposition on or before March 31, 2011 , the Court will entertain a motion to dismiss for failure to prosecute.
As Claimant did not present herself for a deposition as directed by this Court, the Court determines that Claimant's conduct demonstrates a general pattern of delay in proceeding with her Claim. The Court further concludes that Claimant has neglected her Claim and has lost interest in prosecuting it.
The Court now turns to Claimant's request for a telephone deposition or a deposition in Slovenia. Depositions of parties to an action are generally held in the county where the action is pending (CPLR 3110[1]); however, if a party demonstrates that conducting the deposition in that county would cause undue hardship, the Court can order the deposition to be held elsewhere (Yu Hui Chen v Chen Li Zhi, 81 AD3d 818, 818 [2d Dept 2011]; Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d 815, 815 [2d Dept 2009]); Koch v Sheresky, Aronson & Mayefsky, 2010 NY Slip Op 31206[U] [Sup Ct New York County 2010]).
Here, Claimant has failed to establish that traveling to New York will result in undue hardship (LaRusso v Brookstone, Inc., 52 AD3d 576 [2d Dept 2008]; Rodriguez v Infinity Ins. Co., 283 AD2d 969 [4th Dept 2001]; Farrakhan v N.Y.P. Holdings, 226 AD2d 133 [1st Dept 1996]; Carella v King, 198 AD2d 567 [3d Dept 1993]; Gover v Savyon, 2010 NY Slip Op 33582[U] [Sup Ct Nassau County 2010]).
Based upon the foregoing, it is:
ORDERED that Defendant's motion to dismiss for failure to prosecute the Claim, pursuant to Court of Claims Act § 19(3) is granted, unless within ninety (90) days from the date of filing of this Decision and Order with the Clerk of the Court, Claimant appears at the office of the Attorney General in Hauppauge, New York to be deposed at a time and date agreed upon by the parties (see Flynn v Debonis, 246 AD2d 852, 853 [3d Dept 1998]); and it is further
ORDERED that Claimant is to provide the Court with an affidavit stating she has appeared for the deposition within 99 days from the date of filing of this Decision and Order; and it is further
ORDERED that, should Claimant fail to comply with each of the aforesaid deadlines, the Claim will be dismissed on the 100th day after filing of this Decision and Order without further order of this Court.
July 21, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion to dismiss:
Papers Numbered
Notice of Motion, Affirmation in Support
& Exhibits attached 1
Claimant's Notice of Opposition 2
Filed Papers: Claim, Answer, Answer to Amended Claim