New York State Court of Claims

New York State Court of Claims

LEWIS v. THE STATE OF NEW YORK, #2000-018-020, Claim Nos. 101138, 100855, 98170, Motion No. M-61438


Synopsis


Court grants a motion to consolidate two of three claims. The two claims consolidated arise from the alleged negligence of the State in failing to have a second surgery performed on claimant's right leg. Both claims have common questions of fact.

Case Information

UID:
2000-018-020
Claimant(s):
FAY LEWIS
Claimant short name:
LEWIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101138, 100855, 98170
Motion number(s):
M-61438
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
FAY LEWIS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
By: Joel Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 6, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion to consolidate claim numbers 101138, 100855 and 98170. Defendant opposes the motion to consolidate claim number 98170 with claim numbers 101138 and 100855. The Court has considered the following documents in determining this motion:

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

Affidavit of Fay Lewis in support.......................................................2

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney
General, in Response to Motion to Consolidate, with Exhibits A

and B attached thereto.........................................................................3

Consolidation of two or more actions is authorized upon motion where the actions involve " a common question of law or fact". (CPLR 602(a)) Here claim number 101138 seeks damages for the negligence of the State in denying claimant reconstructive surgery on his right leg following a prior surgery on October 14, 1997. This claim allegedly arose on August 18, 1999. Claim number 100855 seeks damages for the negligence of the State in allowing Wexford Manage Care to deny claimant reconstructive surgery on his right knee, following a prior surgery on October 14, 1997. Claimant alleges that this claim accrued on June 22, 1999. Based upon the pleadings it appears to the Court that these claims have common questions of fact. As a result, the Court finds that it is appropriate that these claims be consolidated. (See, Rist v Corni, 260 AD2d 890).

Claim number 98170 alleges that the State was negligent in failing to properly maintain the walkway at Riverview Correctional Facility on January 12, 1997. There is no indication from any of claimant's documents how this claim relates in any way to claim numbers 100855 and 101138, other than they involve the same claimant. The Court agrees with the defendant, this claim should not be consolidated with the other two pending claims.

Accordingly, the Court GRANTS claimant's motion, only to the extent that claim numbers 100855 and 101138 will be consolidated and DENIES claimant's remaining request. The Clerk of the Court is directed to consolidate claim number 100855 into claim number 101138.


June 6, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims