New York State Court of Claims

New York State Court of Claims

LEACH v. THE STATE OF NEW YORK, #2003-019-507, Claim No. 100318, Motion No. M-66112


State's motion to strike the note of issue and certificate of readiness is granted.

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:
DELL & LITTLE, LLPBY: Joseph G. Dell, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: John J. Kelley, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 28, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for an order striking the note of issue and certificate of readiness filed with the Clerk of the Court on November 11, 2002. The Court has not received any papers in opposition on behalf of the Claimants.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed May 10, 1999.
  2. Verified Answer, filed September 13, 1999.
  3. Note of Issue filed November 11, 2002.
  4. Notice of Motion No. M-66112, dated November 25, 2002, and filed November 25, 2002.
  5. Affirmation of John J. Kelley, AAG, in support of motion, dated November 25, 2002, with attached exhibits.
This Claim was filed with the Clerk of the Court on May 10, 1999 and served on the Attorney General's office by certified mail, return receipt requested, on that same date. The State filed a Verified Answer on September 13, 1999. The Claim alleges Claimant Jane Leach suffered catastrophic injuries resulting from medical malpractice while a patient at Stony Brook University Hospital on October 15, 1997.

A brief review of the discovery history in this matter is warranted. A preliminary conference was held on January 19, 2000 at which time a discovery schedule was agreed upon by way of a Preliminary Conference Stipulation and Order. The original end date for all disclosure was November 28, 2000. This end date for disclosure was subsequently extended three times to March 23, 2001, September 23, 2001 and finally to March 23, 2002 by way of Supplemental Preliminary Conference Stipulations and Orders. During this time period, counsel were in contact with chambers with respect to Claimants' attempt to get the State to provide names and addresses to allow the scheduling of depositions of the attending physicians. In fact, Claimants agreed to withdraw a motion to compel relating thereto upon the State's compliance. After some nudging by the Court, the State ultimately provided the information and the necessary deposition was held in August of 2002. At no point during this process did either party advise the Court of any problem regarding outstanding responses due from Claimants.

By way of this motion, the State seeks to strike the note of issue and certificate of readiness.[1] According to 22 NYCRR 206.12 (d):
[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect....

The State received this note of issue on November 5, 2002 and filed this motion to strike on November 25, 2002 within the applicable time period.

Turning to the merits of the motion, the State argues that the certificate of readiness inaccurately represents that all discovery proceedings are now complete and that there are no outstanding requests for discovery. To the contrary, the State avers that it has yet to receive a response to its combined discovery demand served back on October 21, 1999. Surprisingly, given the history here of Claimants complaining that the State was not complying with discovery, Claimants have not responded to this motion.

Claimants' failure to respond to this motion leaves the Court with no alternative other than to accept the State's representations that discovery is yet to be completed. Although the Court is reluctant to once again adjourn this matter, based upon the State's unrebutted representations, the Court will strike the note of issue and certificate of readiness.

In view of the foregoing, it is ORDERED that the State's motion to strike the note of issue and certificate of readiness, Motion No. M-66112, is GRANTED and the Clerk of the Court is directed to strike said note of issue. Claimants are directed to provide a response to the State's combined discovery demand on or before March 21, 2003. A note of issue and certificate of readiness shall be filed by April 30, 2003. No further extensions shall be granted.

January 28, 2003
Binghamton, New York

Judge of the Court of Claims

[1]The State made its motion pursuant to 22 NYCRR 202.21 applicable to the supreme and county courts. This Court will deem the State's motion to have been made pursuant to 22 NYCRR 206.12 which contains the analogous provision applicable in the Court of Claims. The provisions are nearly identical except for distinctions not relevant here.