New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2002-009-26, Claim No. 99666, Motion No. M-64775


Defendant's motion to stay a previously scheduled trial of this claim was granted, pending resolution of an Appellate ruling as to legal representation of the defendant. The aspect of the motion seeking to stay the period for bringing dispositive motions was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
BY: Patricia A. Lynn-Ford, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patrick F. MacRae, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 19, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order staying the previously scheduled trial of this claim, as well as staying the period for bringing any dispositive motions.

The following papers were considered by the Court in connection with this motion:
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[1], 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 Claims.[2]

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.

June 19, 2002
Syracuse, New York

Judge of the Court of Claims

[1] In a prior motion (Motion No. M-61978) defendant had moved for a stay of all proceedings in this claim, which was then in the discovery stage, pending a determination by Supreme Court of its declaratory judgment action. This motion was denied by the Court, by Decision and Order dated July 20, 2000.
[2] Interestingly, Kevin E. Hulslander, Esq., in his supporting affidavit to an order to show cause requesting a stay of the trial of the Supreme Court action, argues that the Court of Claims action should proceed first, in order to determine the "well-settled duty owed to plaintiff by the state" (see Exhibit D to Items 1,2, par. 2 of the Supporting Affidavit).