New York State Court of Claims

New York State Court of Claims

JOHNSON, R. v. THE STATE OF NEW YORK, #2003-019-575, Claim No. 100080, Motion No. M-66222


Synopsis


Case Information

UID:
2003-019-575
Claimant(s):
RICHARD JOHNSON, ADMINISTRATOR OF THE GOODS AND CHATTELS, CREDITS OF LISA WALKER-JOHNSON, DECEASED
Claimant short name:
JOHNSON, R.
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100080
Motion number(s):
M-66222
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
PRESTON & WILKINSBY: Gregory R. Preston, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Ross N. Herman, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 15, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State of New York (hereinafter "State") moves for an order dismissing this claim on several grounds including: (1) claimant's failure to prosecute pursuant to Court of Claims Act (hereinafter "CCA") § 19; (2) claimant's failure to file a certificate of merit pursuant to CPLR 3012-a; and (3) dismissing any cause of action for decedent's conscious pain and suffering for failure to comply with CCA 10 and 11. Claimant has failed to respond to this motion.

On March 30, 1997, decedent Lisa Walker-Johnson was admitted to the University Hospital of Brooklyn, State University of New York, Health Science Center at Brooklyn, in Brooklyn, New York (hereinafter "Hospital") for labor and delivery. The claim alleges that one Dr. Murray performed a cesarean section after attempts to induce labor failed. Thereafter, "[d]ecedent developed a bilateral venous thrombi and pulmonary emboli" and died from a pulmonary embolism on April 1, 1997. (Claim, ¶ 10). On March 18, 1999, decedent's surviving husband, Richard Johnson, was appointed administrator by the Surrogate's Court of Kings County, New York. This claim was filed with the Clerk of the Court on March 31, 1999 and personally served on the Attorney General's office on that same date. The State filed a Verified Answer on May 13, 1999.


The court will review the procedural history of this matter. A discovery schedule was set forth in a Preliminary Conference Stipulation and Order after a preliminary conference held on August 26, 1999. A second conference scheduled for September 19, 2001 was cancelled due to the tragic events of September 11, 2001. The parties exchanged written discovery demands and responses including bill of particulars and discovery and inspection, but were encountering difficulties in scheduling depositions. On March 22, 2002, claimant's counsel advised the court that he was having difficulty in locating Mr. Johnson for the purpose of scheduling depositions. A Supplemental Preliminary Conference Stipulation and Order was prepared setting forth September 20, 2002 as the end date for discovery and the filing of a note of issue and January 20, 2003 as the deadline for the filing of any dispositive motions. By letter dated October 28, 2002, claimant's counsel advised the court by letter that he had still been unable to locate Mr. Johnson. Counsel indicated that he had no alternative than to seek to be relieved as counsel and submitted an Order to Show Cause on or about February 10, 2003. This court declined to sign said Order to Show Cause due to the failure of the papers to establish adequate attempts to locate claimant. However, the court adjourned the State's dismissal motion without date in order to allow claimant's counsel additional time to locate his client or to provide further information relative to the attempt to withdraw as counsel. The court heard nothing further from claimant's counsel. On November 3, 2003, the court notified the parties in writing that the State's original dismissal motion was being returned to the court's calendar with a return date of December 10, 2003 allowing the submission of additional papers. The State relies on its original motion papers, and the court has received no papers in opposition by or on behalf of claimant.


CCA § 19 states that "[c]laims may be dismissed for failure to appear or prosecute or be restored to the calendar for good cause shown, in the discretion of the court." In view of claimant's failure to respond to the State's dismissal motion for failure to prosecute, the State's motion will be granted.


Accordingly, for the reasons stated above, it is ordered that the State's motion to dismiss, Motion No. M-66222, is GRANTED and Claim No. 100080 is DISMISSED.


December 15, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The Court has considered the following papers in connection with this motion:

  1. Claim, filed March 31, 1999.
  2. Notice of Motion No. M-66222, dated January 3, 2003, and filed January 7, 2003.
  3. Affirmation of Ross N. Herman, AAG, in support of motion, dated January 3, 2003, with attached exhibits.