New York State Court of Claims

New York State Court of Claims

JERZAK v. STATE OF NEW YORK, #2000-018-019, Claim No. 99070, Motion No. M-61360


The defendant brings a motion to strike the note of issue. Defendant did not complete an independent medical examination on claimant, prior to the filing of the note of issue. The Court granted the motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: LOUIS J. TRIPOLI, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 31, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings this motion seeking an order striking the note of issue and certificate of readiness which was filed by claimant's counsel on March 9, 2000 with the Clerk of the Court. Claimant opposes the motion. The Court has considered the following documents in determining the motion:

Notice of Motion....................................................................1

Affidavit of Louis J. Tripoli, Esquire, Assistant

Attorney General, with all exhibits attached thereto...2

Affidavit in Opposition of Sidney P. Cominsky, in

opposition with all exhibits attached thereto..............3

This claim was filed on October 2, 1998. An Answer was filed on November 4, 1998 and an Amended Answer was filed on November 16, 1998. Claimant filed the note of issue and certificate of readiness on March 9, 2000.

Section 206.12(d) of the Uniform Rules for the Court of Claims provides that: "Within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect."

Defendant by this motion alleges that the Certificate of Readiness contains erroneous information, in that it incorrectly provides that an independent medical examination of claimant has been waived. Defendant alleges that he attempted to secure an agreement with claimant's counsel upon receipt of the note of issue and certificate of readiness to allow the defense to have an independent examination of claimant performed, but claimant's counsel refused to agree to the examination, leaving defendant with no resort other than to move to strike the note of issue. (Tripoli affidavit ¶6, and Exhibit D and E)

Claimant's counsel argues that the note of issue was filed pursuant to this Court's Preliminary Conference Order and that defense counsel was notified by letter that the note of issue would be filed, almost a month prior to the filing. (Cominsky affidavit, Exhibit C) Claimant's counsel provides that the claimant is not opposed to submitting to an examination for the defense.

Defendant's counsel should have advised the Court that more time was needed for completion of an independent medical examination of claimant prior to the expiration of the date set forth in the Amended Preliminary Conference Order for the completion of discovery. Despite the Court's reluctance to accommodate the lack of compliance with its Order, the Court is aware of the difficulties encountered between counsel in completing disclosure in this case and the defense at this point should not be penalized.

Accordingly, the Court GRANTS defendant's motion and directs the Clerk of the Court to strike the note of issue. The defendant is directed to schedule an independent medical examination for claimant by July 15, 2000. Any reports from the medical examination shall be provided to claimant's counsel within 20 days of receipt. A note of issue shall be filed by September 30, 2000. No further extensions shall be granted. The failure to comply with this Order may result in sanctions being imposed.

May 31, 2000
Syracuse, New York

Judge of the Court of Claims