New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2001-009-007, Claim No. 97973, Motion No. M-62746


Synopsis


Claimant's motion seeking an order reinstating the claim was granted.

Case Information

UID:
2001-009-007
Claimant(s):
JIMMY GONZALEZ
Claimant short name:
GONZALEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97973
Motion number(s):
M-62746
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
KENNY AND KENNY, ESQS.
BY: Jason A. Richman, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Carla T. Rutigliano, Esq.,
Assistant Attorney General,Of Counsel.
Third-party defendant's attorney:

Signature date:
February 20, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order reinstating the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2


Affirmation in Opposition, with Exhibits 3

This claim, alleging negligence against the State, was filed on March 16, 1998. Claimant seeks damages for personal injuries suffered by him in an accident involving the allegedly unsupervised and untrained use of a forklift, while he was in the custody of the defendant at Auburn Correctional Facility.

Pursuant to an amended scheduling order dated November 3, 1999, claimant was required to file a note of issue by April 7, 2000. When claimant failed to comply with this directive, or request an extension thereof, this Court scheduled a conference for October 18, 2000. Following this conference, this Court issued an order dismissing this claim, without prejudice, based upon the failure of the claimant to serve and file a note of issue and certificate of readiness as required by the aforesaid scheduling order. The order of dismissal granted claimant permission to apply to the Court for reinstatement of the claim, and this motion ensued.

In his supporting affirmation, claimant's counsel affirms that all outstanding discovery, including all depositions, has been completed, and was completed prior to the deadline imposed by the Court's scheduling order dated November 3, 1999. Although a note of issue had not been filed, claimant's counsel had apparently expected a trial date to be established at the conference. This fact was not made known to the Court at the conference on October 18, 2000.

Based upon the affirmation of claimant's counsel, it is apparent to the Court that rather than being abandoned, this claim was ready for trial on October 18, 2000, and remains ready for trial. It is therefore the decision of the Court that this claim should be reinstated, and restored to this Court's calendar of open and untried claims.

Additionally, the Court directs that a note of issue and certificate of readiness shall be served and filed by claimant no later than March 30, 2001.

Accordingly, it is

ORDERED, that Motion No. M-62746 is hereby GRANTED, in accordance with the foregoing.


February 20, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims