Smither v. State

This claim was filed June 13, 1955 and appeared upon the New York City calendar for each of the four successive terms of court in that city. On September 16, 1957 it went over the term and off the Trial Calendar. By statement of readiness signed by the Attorney-General and filed with the clerk of the court and served upon claimant’s attorneys on December 4, 1958 the claim was restored to the Trial Calendar for the term opening January 19, 1959, at which time it was dismissed pursuant to rule 7 of the Rules of the Court of Claims. This is an application to restore the claim to the Trial Calendar submitted to the court upon affidavits and the record.

The principal points in the moving affidavit are as follows: That neither claimant’s attorneys nor trial counsel were aware that the claim was on the calendar for January 19, 1959; that claimant’s attorneys’ office did not receive any notification *494thereof; that claimant’s attorneys’ office did not receive a calendar of claims scheduled for the term of court commencing that day. There is also an averment by trial counsel that on September 16,1957 he appeared at the calendar call and was advised ‘ ‘ by either the court clerk or by a representative of the Attorney-G-eneral’s staff that there was no necessity for remaining for the calendar call as the case could not be reached and would be marked over automatically for the following term.” Trial counsel also avers that since September 16, 1957 neither his office nor the office of the attorneys of record for the claimant received any notice that the case would be on the Trial Calenda)1.

Trial counsel does admit having received a copy of the statement of readiness but says “ However, nothing on this statement .indicated that the matter would be on the calendar January 19, 1959.” The last item on the statement of readiness is as follows: “ 10. The claim is ready for trial and it is requested that it be placed on the trial calendar.” The clerk complied with this request. Also, the records of the clerk disclose that in accordance with subdivision 5 of rule 32 of the Rules of the Court of Claims a copy of the printed calendar for the New York Term beginning January 19, 1959 was mailed to claimant’s attorneys at the address subscribed to the original pleading seven days before the opening of the term.

Claimant has not shown sufficient reason why the order dismissing the claim should be vacated and the trial thereof permitted.

Motion denied.