Opinion
# 2012-049-104 Claim No. 110281 Motion No. M-81069
03-29-2012
JOHNSON v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-049-104 Claimant(s): JOHNATHAN JOHNSON Claimant short name: JOHNSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 110281 Motion number(s): M-81069 Cross-motion number(s): Judge: David A. Weinstein Johnathan Johnson, Pro Se Claimant's attorney: By: No Appearance Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: March 29, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On February 17, 2012, defendant State of New York moved orally to dismiss the above-captioned claim brought pro se by incarcerated claimant Johnathan Johnson, for failure to appear and prosecute. As stated on the record at that proceeding, the Court grants defendant's application. This opinion sets forth the basis for such dismissal, and the denial of Johnson's motion for an adjournment of the trial as moot.
The present claim, filed by Johnson on December 29, 2004, sets forth four, apparently unrelated, causes of action. The first alleges that an Article 78 petition filed by Johnson in 2004 was dismissed because a "fraudulent document" was filed by the State (Claim ¶¶ 1-17). The second alleges that from September 2004 through January 2005, Johnson was forced to eat a restricted diet consisting of a loaf containing foods to which he was allergic (Claim ¶¶ 18 - 25). The third alleges that in November 2004, a sergeant at an unspecified correctional facility refused to permit Johnson to possess any legal documents, an order that was countermanded (with unspecified effect) by a Deputy Superintendent (Claim ¶¶ 26 - 29). The fourth alleges that the food services administrator at Southport Correctional Facility gave less food to inmates in the Special Housing Unit than those in general population, leading claimant to lose a significant amount of weight (Claim ¶¶ 30 - 35).
The State moved to dismiss the claim, and Johnson moved to compel discovery. By order dated November 14, 2006, the Court dismissed the first, third and fourth causes of action, and directed defendant to respond to Johnson's disclosure requests as they related to his second cause of action. In accordance with that order, the defendant filed a disclosure response on December 22, 2006, making available 72 pages of documents upon payment of 25 cents per page. The record does not reflect that any such payment was made, or that any documents were provided.After various trial dates were adjourned,this claim was scheduled for trial on February 17, 2012, and Johnson was notified of such by letter mailed December 15, 2011.Johnson took no action until February 10, 2012, when he moved for another adjournment by motion filed that day. The motion alleged that prison officials were "withholding claimant's legal documents since October, 2011, that pertain[] to the claims within this case" (Johnson Aff. ¶ 3), although it did not identify the documents at issue.
Under Rule 206.5(c) of the Unified Rules of the Court of Claims, all papers served upon another party - including discovery responses - are to be filed with the Clerk of the Court.
The claim was scheduled for trial on June 23, July 7, and October 7, 21, and 22, 2009, but was adjourned each time. The reasons for the delay are not all set forth in the record, but at least one such adjournment occurred when the Court granted Johnson's motion to amend his claim to change his allegations as to the identity of the foods to which he was allergic (see Johnson v State of New York, Claim No. 110281, Motion No. M-76415, Hard, J. [Aug. 24, 2009]).
The letter is dated December 7, but a stamp on the Court's copy indicates that it was given to the Post Office for mailing on December 15.
This was not the first time Johnson sought adjournment of one his claims on this ground. In four previous cases set for trial in September and October, 2011, Johnson moved the Court on the same basis to postpone the trial. In each instance, I denied the motion without prejudice to Johnson seeking an adjournment in person the day of trial but prior to its commencement, and directing that he should be ready to proceed in the event the application was denied. In each instance, Johnson instead declined to appear, and his claims were dismissed accordingly(see Johnson v State of New York, UID No. 2011-049-015, Claim Nos. 110055, 110504, 111467, 111684, Motion Nos. M-80393, M-80474, Weinstein, J. [Nov. 4, 2011]).
Johnson moved to restore the claims to the calendar. The motion was denied, as Johnson failed to set forth any valid legal basis for his failure to appear.
In this case, the Court provided the same direction once more by letter dated February 14. Specifically, the letter indicated that the Court would hear arguments concerning Johnson's adjournment request prior to trial, he should be ready to proceed with the trial should the application be denied, and failure to appear would result in dismissal of his case.
The Court was closed from February 11th through the 13th, for the weekend and Lincoln's Birthday.
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The day before that letter was sent, on February 13, 2012, the Department of Corrections and Community Supervision sought to transport Johnson to the location of the trial, but Johnson refused to go, and signed a document manifesting such refusal. That document read as follows: "I, Jo[h]nathan Johnson 89A1042, am refusing to APPEAR AT MY COURT OF CLAIMS HEARING AT SOUTHPORT CF that was scheduled to take place on FRI, FEBRUARY 17, 2012. I am aware that a copy of this refusal will be sent to THE COURT so that they are aware of my refusal." Handwritten below this statement, Johnson added the following: "The legal documents [ALL] that pertain[s] to this claim ha[ve] been confiscated by the officials at this Facility And they ha[ve] refused to give them back to this writer to date. In October and again on November 16, 2011." In different handwriting, a correction sergeant whose signature is not legible to the Court, wrote yet another statement, as follows: "In reference to the above statement inmate never requested any paper work from the officers who were in charge of his escort."
On February 17, as Johnson did not appear, the defendant moved to dismiss this claim for failure to prosecute. I granted that motion, for reasons explained below.
Court of Claims Act § 19(3) provides that "claims may be dismissed for failure to appear or prosecute . . . in the discretion of the court." Further, under Uniform Rules for the Court of Claims (22 NYCRR) § 206.15: "[w]henever . . . the assigned judge has directed that the claim be ready for trial by a particular date and the defendant is ready to proceed with the trial but the claimant is not so ready, the assigned judge, upon motion by the defendant or upon his or her own motion, may dismiss the claim unless sufficient reason is shown why such claim should not be tried at that time."
This Court scheduled a trial in this matter for February 17, 2012. That date was not adjourned. Indeed, claimant did not seek to adjourn the trial until one week before the trial, and three days before he was to be transported to the facility where his claim would be heard. Johnson had made four materially identical requests for adjournments in cases over which I presided in the past seven months, and each was denied. Johnson had no basis to believe that the result would be any different in regard to the eleventh hour application to adjourn made in this case.
Further, there was no good cause for Johnson's failure to appear. Claimant's own filings reveal that he was well aware of the trial date. While he contends that he could not go forward because his legal documents had been confiscated, there is nothing in Johnson's submissions to indicate what documents, if any, he lacked that were relevant to his claim. Indeed, the record does not reveal that any documents were ever provided to Johnson in discovery on his claim. Nonetheless, the Court granted him - in this case as in every other matter where the same issue has arisen - the opportunity to explain specifically the need for such adjournment prior to trial, so that the Court could determine the merits of his concerns, and what steps could be taken to address them. Instead, he chose not to appear. Johnson's refusal to be present on the date set by the Court for trial provides ample grounds to dismiss his claim (see Shabazz v State of New York, 191 AD2d 832 [3d Dept 1993]; Scheckter v State of New York, 33 AD2d 1075 [3d Dept 1970]).
In light of the foregoing, claim no. 110281 is dismissed pursuant to Court of Claims Act § 19(3) and the Uniform Rules for the Court of Claims (22 NYCRR) § 206.15. Johnson's motion no. M-81069 for adjournment is denied as moot.
March 29, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims