New York State Court of Claims

New York State Court of Claims

WEISER v. THE STATE OF NEW YORK, #2001-009-041, Claim No. 101333, Motion No. M-63452


Synopsis


Defendant's motion to strike the note of issue was granted.

Case Information

UID:
2001-009-041
Claimant(s):
JAMES M. WEISER and DANIELLA WEISER By a Decision and Order dated May 1, 2001 (see Motion No. M-63283), this Court relieved the lawfirm of Moran & Kufta of representation for Daniella Weiser. Since that date, the Court has not received any notification of any legal representation on her behalf.
Claimant short name:
WEISER
Footnote (claimant name) :
By a Decision and Order dated May 1, 2001 (see Motion No. M-63283), this Court relieved the lawfirm of Moran & Kufta of representation for Daniella Weiser. Since that date, the Court has not received any notification of any legal representation on her behalf.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101333
Motion number(s):
M-63452
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
MORAN & KUFTA, P.C.
BY: Mark J. Valerio, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Law Offices of David B. Mahoney
James C. Grosso, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
September 14, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order striking the note of issue and certificate of readiness which has been previously filed in this claim.

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


Affirmation in Opposition, with Exhibits 3

Reply Affirmation, with Exhibit 4


Second Affirmation in Opposition, with Exhibit 5

On September 27, 2000, this Court granted claimants' motion[1] seeking an order granting them summary judgment on the issue of liability in this claim pursuant to Labor Law § 240(1).[2]

On April 2, 2001, claimants' attorney served a note of issue and certificate of readiness with regard to the issue of damages. Within 20 days thereafter, defendant brought this motion pursuant to § 206.12(d) of the Uniform Rules for the Court of Claims seeking an order striking this note of issue.

In his supporting affirmation (see Item 2), the attorney for the defendant asserts that the case is not ready for trial, in that claimant James M. Weiser has not yet submitted to an independent physical examination, mental examination, and a vocational rehabilitation examination. Defendant's attorney further asserts that these examinations have not been waived by the defendant, that such examinations are necessary to the defense of this claim, and that he was awaiting updated medical records prior to requesting said examinations.

Claimants assert that defendant has waived any independent medical examination by failing to make a timely request, and that defendant has had ample time to conduct all discovery.

From an examination of the papers submitted herein, it is readily apparent that defendant has not waived its right to any independent medical examinations, and therefore discovery is incomplete at this time. Since defendant has timely made application to the Court and has established, by affirmation, that this claim is not ready for trial, the note of issue should be stricken pursuant to § 206.12(d) of the Uniform Rules. (See, Aviles v 938 SCY Ltd., 2001 NY Slip Op. 03745, 725 NYS2d 256; Audiovox Corp. v Benyamini, 265 AD2d 135).

Since the issue of liability is currently on appeal, the Court notes that a trial on the issue of damages would not be scheduled until this appeal is finally determined. Therefore, there remains ample time for the parties to complete any and all examinations prior to this claim being scheduled for trial.

Accordingly, it is

ORDERED, that Motion No. M-63452 is hereby GRANTED; and it is further

ORDERED, that the note of issue and certificate of readiness previously filed in this claim is hereby stricken.

September 14, 2001
Syracuse, New York

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




[1] See Decision and Order to Motion No. M-61755 and Cross-Motion No. CM-62026.
[2] The Court is aware that its decision on liability is currently under appeal to the Appellate Division, Fourth Department.