New York State Court of Claims

New York State Court of Claims

CAB v. THE STATE OF NEW YORK, #2002-015-218, Claim No. 101711, Motion No. M-64199


Synopsis


Court struck note of issue where certificate of readiness indicated discovery not yet complete.

Case Information

UID:
2002-015-218
Claimant(s):
CAB ASSOCIATES
Claimant short name:
CAB
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101711
Motion number(s):
M-64199
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Tunstead, Schechter & GrillBy: Marvin Schechter, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Arthur Patane, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 17, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion for an order pursuant to 22 NYCRR 206.12 (d) striking the claimant's note of issue filed on October 12, 2001 is granted. The claim filed on January 3, 2000 seeks damages for breach of a contract between the parties (Contract No. D 254551) for the replacement of the Beach Lane Bridge located in Westhampton, New York

On October 12, 2001claimant's attorney filed a note of issue and accompanying certificate of readiness in a form substantially, but not precisely, complying with the requirements of 22 NYCRR 206.12 (b). In regard to items numbered 7 and 8 on the certificate of readiness form used by claimant's attorney the words "Depositions to be completed" were inserted rather than a check mark or "X" in one of three columns to signify that discovery was complete, waived, or not required. By the insertion of the words "Depositions to be completed," counsel acknowledged that the case was not trial ready thereby rendering incorrect item #12 on the form which states "The case is ready for trial."

It is well established that, except in rare instances (not applicable here) where a defendant has had sufficient opportunity to complete discovery and failed to do so, the note of issue must be struck where discovery proceedings are not complete (see Fultz v Benvenuti Props., 155 AD2d 794; Polsinelli v Hanover Ins. Co., 62 AD2d 376; cf. Easley v Van Dyke, 110 AD2d 967).

Here it appears that claimant did not serve its bill of particulars on defendant's attorney until after the instant motion was made and that as of the return date of this motion a copy had not yet been filed with the Clerk as required by 22 NYCRR 206.5 (c). It further appears that at the time of filing the note of issue claimant's attorney was fully cognizant of the fact that depositions either had not been scheduled, had not yet taken place, or had not been completed.

Since at this time the case is obviously not trial ready the note of issue was prematurely filed (see, Barnett v DeMian, 207 AD2d 693). Defendant's motion is, therefore, granted and the claimant's note of issue is struck.


January 17, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 18, 2001;
  2. Affidavit of Arthur Patane sworn to October 18, 2001 with exhibits;
  3. Affirmation of Marvin Schechter dated November 12, 2001 with exhibit;
  4. Affidavit of Arthur Patane sworn to November 13, 2001.