Notice of Motion, Affidavit, with Exhibits 1,2
Affirmation in Opposition, with Exhibit 3
This claim, which was filed on January 21, 1999, alleges acts of negligence,
recklessness, and carelessness against the State in the death of Jill Catherine
Cahill on October 28, 1998, while Ms. Cahill was a patient at the State
University of New York Health Science Center at Syracuse.
Following the service and filing of a note of issue and certificate of
readiness, this Court held a conference on November 27, 2001, at which time a
trial on the issue of liability was scheduled to commence on September 30, 2002.
Due to the complex nature and circumstances peculiar to this claim, this Court
reserved three weeks for this liability trial.
Following the commencement of this claim, the State commenced an action in
Supreme Court for declaratory judgment
seeking an order directing Doyle Protective Services, Inc. and/or its liability
carrier, Royal Insurance Company of America to provide the State with a defense
in this action. An order was issued in the declaratory judgment action
directing Royal Insurance Company to assume the defense of this action, and this
order is currently under appeal to the Appellate Division, Fourth Department.
In the within motion, defendant argues that the trial of this claim should
therefore be stayed, pending resolution of the issue of legal representation for
the defendant. Defendant also argues that once this issue is resolved, whoever
ultimately represents the defendant in this claim will need a substantial amount
of time to familiarize himself or herself with the file, and to adequately
prepare for a lengthy and relatively complex trial.
An action arising out of the same set of facts has also been commenced in
Supreme Court, Onondaga County, against the provider of security services at the
Health Science Center, bearing the caption FREDERICK R. RUSSELL, AS
ADMINISTRATOR OF THE ESTATE OF JILL CATHERINE CAHILL, Deceased v JAMES F.
CAHILL, III, and DOYLE PROTECTIVE SERVICES, INC. and THE DOYLE GROUP, INC.,
which has been given Index No. 1999-2270. Defendant also argues that the trial
of the Court of Claims action should be stayed until the trial of this Supreme
Court action has been completed. Defendant argues that regardless of the
outcome in the Court of Claims action, a second trial in Supreme Court would, in
all likelihood, still be required, and therefore, in the interest of judicial
economy, the trial in this claim should be stayed.
CPLR 2201 provides that a court "may grant a stay of proceedings in a proper
case, upon such terms as may be just." A decision upon granting a stay is
discretionary with the Court, which must balance the interests of the parties.
The court should consider factors such as the potential length of the stay, and
the potential prejudice to each party created by the stay.
Throughout the discovery phase of this claim, and during numerous conferences
and court appearances, this Court has made it clear to counsel for the parties
that this claim, once ready for trial, would be scheduled and heard based on
this Court's available trial dates, whether or not the Supreme Court action had
been tried. This Court is not convinced that a resolution of the action in
Supreme Court will eliminate the necessity of a trial in the Court of
Accordingly, this Court will not subordinate the timing of the trial of this
claim to the trial of the Supreme Court action, whenever that may be scheduled.
Defendant, however, has raised a valid point with regard to proper legal
representation of the defendant in this claim. The trial of this claim should
not proceed until the issue of representation has been finally resolved. To
date, this Court is not aware that an Appellate ruling has been made with regard
to the appeal of the defendant's declaratory judgment action. Even though it is
anticipated that such a ruling will be made prior to the scheduled commencement
of this trial on September 30, 2002, there is no guarantee that this issue will
be resolved by that date. Furthermore, and as stated above, it is expected that
this trial will be quite lengthy, and counsel, whoever that may be, will need an
extensive amount of time to review the file and adequately prepare for trial.
This Court does not believe that it would be fair to such counsel, and by
extension, to the defendant, to adhere to the dates originally set for trial.
Accordingly, the Court hereby adjourns the liability trial originally scheduled
to commence on September 30, 2002. Defendant's attorney is instructed to notify
the Court, in writing, immediately upon receipt of the determination on the
appeal of its declaratory judgment action, and to provide the Court with the
name, address, and telephone number of the attorney who will be representing the
defendant in the trial of this claim.
In this motion, defendant has also requested a stay of the period for bringing
any dispositive motions in this claim, thereby providing new counsel (if and
when new counsel are directed to represent the defendant) a period of time to
bring such dispositive motions, if any.
As previously noted, a note of issue was filed with the Court on June 25, 2001.
Pursuant to CPLR Rule 3212(a), unless otherwise provided by the Court, a party
may move for summary judgment no later than 120 days after the filing of a note
of issue, except upon leave of Court. In this case, therefore, the time for
bringing any such dispositive motion expired well before this application was
made, and therefore the Court considers this aspect of defendant's application
to be moot. Once the issue of representation is resolved, and should counsel
representing the defendant at that time deem it appropriate to move for summary
judgment, leave of the Court must first be obtained, upon good cause being
shown, in accordance with Rule 3212.
Accordingly, it is
ORDERED, that Motion No. M-64775 is hereby GRANTED, in part, and the liability
trial of this claim, previously scheduled to commence on September 30, 2002, is
hereby adjourned; and it is further
ORDERED, that defendant's attorney is directed to notify the Court, in writing,
with the name, address, and telephone number of defense counsel, once a
determination has been made on the pending appeal of the declaratory judgment
action; and it is further
ORDERED, that in all other aspects, this motion is DENIED.