New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2001-009-029, Claim No. 99934, Motion No. M-63551


Synopsis


Defendant's motion to strike the notes of issue was granted by the Court.

Case Information

UID:
2001-009-029
Claimant(s):
NICHOLAS THOMAS, an Infant, by his Parents LANA and RICHARD THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99934
Motion number(s):
M-63551
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
RUTHIG & LEONARD
BY: Mary E. Leonard, Esq., Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Gordon J. Cuffy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
July 5, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2001-009-030

Decision

Defendant has brought this motion seeking an order striking the notes of issue previously filed in each of the above claims.

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

These claims were both filed on March 5, 1999, and seek damages arising from the same incident. It is alleged in each claim that representatives of the New York State Police and the Tompkins County Department of Social Services used improper tactics to take Nicholas Thomas, an infant, into custody. The claim of Lana Thomas (Claim No. 99935) also alleges that these representatives used improper tactics to secure her arrest.

On September 26, 2000, a note of issue and certificate of readiness in the Nicholas Thomas claim (Claim No. 99934) was filed with the Clerk of the Court of Claims. However, a note of issue and certificate of readiness was not filed at that time for the Lana Thomas claim (Claim No. 99935). As is this Court's customary practice, a calendar call and conference was then scheduled in order to establish a trial date for the Nicholas Thomas claim. Since it was apparent to this Court that these claims should be jointly tried, both claims were noticed for the calendar call and conference, even though a note of issue had yet to be filed in the Lana Thomas claim. At this conference, held April 9, 2001, the Court directed claimants' attorney to immediately serve and file a note of issue in the Lana Thomas claim (Claim No. 99935). The Court also scheduled both claims for a joint trial on liability to commence on July 16, 2001.

At the conference on April 9, 2001, defendant's counsel, who had recently been assigned to the defense of the claims, advised the Court that certain of its discovery demands, and a response to its demand for a bill of particulars, had not been answered in either claim. Rather than delaying the trial, the Court advised counsel for the parties to attend to these outstanding demands, and that the Court would entertain a motion to strike the note of issue (which had been filed in the Nicholas Thomas claim) if satisfactory responses to the demands were not provided to the defendant.

Following the conference on April 9, 2001, claimants' attorney filed a note of issue in the Lana Thomas claim (Claim No. 99935) on or about April 19, 2001. As set forth in the moving papers herein, however, claimants have not provided responses to the outstanding discovery demands, nor have they provided a bill of particulars, despite efforts by defendant's counsel to obtain same. Defendant therefore brought this motion, claiming that it would be prejudiced if it had to proceed to trial without first having obtained responses to its previously served demands.

In addition to ignoring the attempts of defendant's counsel to obtain discovery, claimants have also failed to respond to this motion.

Although defendant did not make a timely application to strike the note of issue which had been filed in the Nicholas Thomas claim (Claim No. 99934), as required by the Uniform Rules for the Court of Claims, § 206.12(d), it is clear that with regard to the Lana Thomas claim (Claim No. 99935), defendant has made a good faith effort to obtain responses to its discovery demands. Failing to obtain those responses, defendant has properly resorted to this application to strike the note of issue.

Due to the fact that claimants have not provided either a bill of particulars or responses to the outstanding discovery demands, despite repeated demands made by the defendant, and since claimants have not submitted any explanation as to why responses have not been provided, this Court finds that defendant has established "good cause", as provided in § 206.12(d) of the Uniform Rules, for striking the note of issue in both claims.

Accordingly, it is

ORDERED, that the notes of issue and certificates of readiness previously filed in Claim No. 99934 and Claim No. 99935 are both hereby stricken; and it is further

ORDERED, that the joint trial on liability for these claims previously scheduled to commence on July 16, 2001, is hereby adjourned; and it is further

ORDERED, that claimants shall provide a bill of particulars and responses to the outstanding discovery demands of the defendant for each claim by August 15, 2001.


July 5, 2001
Syracuse, New York

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