New York State Court of Claims

New York State Court of Claims

CONIKER v. THE STATE OF NEW YORK, #2003-030-561, Claim No. 86901, Motion No. M-66715


Claimant's motion to vacate and/or resettle Court's prior decision and order on damages awarding over $12 million to include past medical expenses denied. Claimant waived opportunity to present evidence of past medical expenses. No stipulation or record that any post trial hearing would be held on the issue.

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
July 24, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 8, were read and considered on Claimant's motion

for an Order vacating and/or resettling that portion of the Court's Decision after trial on the issue

of damages denying an award for past medical and other expenses, and directing that a hearing be

scheduled on the issue of past medical and other expenses:

1-3 Notice of Motion; Affirmation of Bruce H. Goldstone, Esq., Memorandum of Law, and accompanying exhibits

  1. Affirmation of John M. Healey, Assistant Attorney General
  1. Reply Affirmation of Bruce H. Goldstone, Esq.
6-8 Filed Papers: Claim, Answer, Decision and Order filed February 5, 2003

After carefully reviewing the papers submitted and the applicable law the motion is disposed of as follows:

As an initial matter, Defendant correctly notes that this motion is improperly brought pursuant to Civil Practice Law and Rules §2221. Rather than renewal or reargument concerning a prior order deciding a motion, Claimant seeks vacatur of an order made after a hearing, governed by Civil Practice Law and Rules §5015. As noted by Claimant, however, the Court may correct any defect or irregularity at "any stage of an action . . . " [see, Civil Practice Law and Rules §2001]; and may also entertain a motion pursuant to Civil Practice Law and Rules §4404(b), and is empowered to " . . . set aside its decision or any judgment entered thereon." Regardless of what section is cited or relied upon, this Court may consider the present application and shall, for what it's worth.

During the course of the trial on damages - as both Claimant and Defendant aver in their respective submissions - there was discussion between counsel of a possible stipulation concerning Claimant's past damages, including an outstanding Worker's Compensation lien, and past medical expenses. From the following colloquy between counsel - to which the Court was only the most peripheral participant, indeed the Court was examining its calendar to set a date for the submission of post trial memoranda of law - Counsel for Claimant would urge the conclusion that a stipulation was entered into, to which the Court was a "witness," to the effect that a hearing would be held after the 13 day damages trial, on the exclusive issue of Claimant's past expenses:
THE COURT: Okay. I believe that concludes the trial.
MR. GOLDSTONE: I guess so.
MR. HEALEY: I hope so.
THE COURT: You hope so?
MR. GOLDSTONE: Except for the hearing part.
MR. GOLDSTONE: I mean, you don't want to have a stip on that?
MR. HEALEY: On the what?
MR. GOLDSTONE: On the (inaudible one word).
MR. HEALEY: I'm not sure I'm following you. With regard to after the Court render...
MR. GOLDSTONE: (Inaudible statement).
MR. HEALEY: Not at this time.
MR. GOLDSTONE: Well, once I start preparing, we're not going to have it.
MR. HEALEY: Oh, a stip as to the costs? I thought you were saying having a hearing now. No, no, I don't want to stip to them.
MR. GOLDSTONE: You don't? Okay.
THE COURT: On Thursday, I was going to say on Friday, but on Thursday, we had agreed on a date of July 1[1]. So that's the same, and I guess that's it. There's nothing further at this time. All right.
And I want to thank both of you. You both did a very good
job. And I think we've had, what 12 or 13 days of testimony, so it hasn't been a short trial, that's for sure.
MR. HEALEY: Thank you, Your Honor.
THE COURT: Okay. I think that concludes the matter.

[T. 2209-2210; Monday, April 1, 2002].[2]

As noted by Counsel for the Defendant in his Affirmation, Mr. Goldstone rested at the end of Claimant's case without reservation. [T. 783] After Defendant rested as well, Mr. Goldstone indicated that he might call Claimant as a rebuttal witness. The Court noted at the time "... if we come back we're only going to be back for Monday [April 1, 2002]." [T. 2165]. On March 28, 2002, while discussing submission of post trial memoranda, and handing out information sheets concerning same, and discussing when any rebuttal witnesses would be called, the Court confirmed again that the trial was concluding, and stated, "I think we've taken care of all the other issues that have to be taken care of..." [T. 2167]. After making a ruling on an outstanding matter concerning some trial testimony, the Court again inquired of counsel "Gentlemen, do either of you have or recall anything that I have not ruled on?" [T. 2170].

No documentary evidence of past medical expenses was marked at the trial preparation conference held in anticipation of trial, nor was any marked at the trial. None of the witnesses called who might have testified concerning past medical or other expenses, testified about such expenses.

While the Court is loath to make reference to material dehors the record - a disinclination not shared by Counsel for the Claimant - knowing it was very likely that whatever damages figure was arrived at, it would exceed the $250,000 threshold for future damages, the only "hearing" the Court was referring to on April 1, 2002, was a so-called 50-B hearing pursuant to CPLR 5041(e). [T. 2209-2210]. If the issue of past expenses was still extant or to be examined, Counsel for the Claimant should have alerted the Court of the issue, instead of agreeing that the trial was indeed concluded, and post-trial memoranda of law were to be submitted. Counsel for the Claimant, an experienced and seasoned attorney, should not have allowed the record to stand as ambiguously as it remains to this day, subject only to the vagaries of interpretation and wishful thinking. When the Court stated that the matter was concluded, it is because as far as the Court was concerned, and absent any stipulation or other representation by counsel that some issue had not been addressed that should have been, the trial was over. Whatever colloquy continued between Counsel - and certainly unlike a Court Reporter, a tape recording device[3] does not turn itself off when what is clearly occurring in the courtroom is a discussion between Counsel, as opposed to an application before the Judge - was not the Court's concern. If it should have been the Court's concern, it was incumbent upon Counsel to make that clear. Counsel for Claimant did not press for scheduling a date for this supposed hearing on past expenses, did not mention it in his post-trial memoranda of law and, indeed, said absolutely nothing on the record concerning past expenses until after the Court issued its Decision on February 5, 2003. Counsel then made a series of telephone calls to chambers attempting to schedule a date for a hearing on past expenses, and submitted correspondence to the same effect in March, 2003, to which Chambers responded. [See, Exhibits A, B and C].

In further support of Mr. Goldstone's position, Counsel for Claimant has provided affidavits from Michelle Coniker, the Claimant [Exhibit H]; Dennis Furman, the Claimant's step-father [Exhibit G]; Jonathan Gill, an attorney who apparently represents the Worker's Compensation carrier [Exhibit E]; Jonathan Minkoff, another attorney who asserts he "appeared in the presentation of plaintiff's (sic) action in the within case...[and was] present during most of the damages portion of said trial", and claims to have "accompanied Mr. Goldstone to all bench conferences" on the days he was present in Court. [Exhibit F,¶¶ 1 and 2]; and Daniel Wilton, described as a friend of Mr. Furman [Exhibit I].

Ms. Coniker attests that Mr. Goldstone told her that he was attempting to enter into a stipulation with Mr. Healey concerning a Worker's Compensation lien, and claims to have heard Mr. Goldstone ask the Court if it "wanted proof of all expenses presented before or after the conclusion of the trial, to which...[she] heard the Judge reply that he thought it would be better if done at the conclusion, even stating his reason; that by waiting it would not disrupt the orderly presentation of witnesses." [Exhibit H, ¶5].

Daniel Wilton, recites that Mr. Goldstone presented his stipulation proposal to Mr. Healey "in the Judge's presence at the bench."[Exhibit I, ¶6]. Mr. Wilton also stated that at a "bench conference" he "was able to hear" that Mr. Healey would not stipulate to anything, and could not hear everything Mr. Goldstone said but heard Mr. Goldstone ask "the Court a question relating to scheduling....[Mr. Wilton] also heard the Judge, who was looking forward, clearly reply that he would prefer that it was done after the trial, as the time and order of most witnesses had already been agreed upon." [Ibid, ¶7].

Dennis Furman reports that he could hear everything that was said in the courtroom and had been told by Mr. Goldstone that he might have to testify concerning some past expenses. [Exhibit G,¶ 3 and 4]. Mr. Furman heard Mr. Goldstone suggest a stipulation to Mr. Healey concerning the Worker's Compensation lien, and perhaps a waiver of other expenses. A few days later, Mr. Furman overheard Mr. Healey refuse to enter into a stipulation. "As a part of Mr. Goldstone's response, I overheard Mr. Goldstone state that I would therefore be testifying and that no expenses would be waived. Then Mr. Goldstone asked the Court a question, all of which I could not hear, but relating to scheduling. I then distinctly heard the Judge, who was facing me, say that testimony and evidence of all expenses would be taken at the conclusion of the trial so as not to disrupt the scheduling of witnesses. Both Mr. Goldstone and Mr. Healy (sic) agreed." [Ibid, ¶5].

Mr. Gill, who the Court recalls briefly meeting at the beginning of the trial, describes in his affidavit the various assurances provided by Mr. Goldstone to him that the interests of the insurance carrier were being addressed. [Exhibit E]. He mentions having learned from Mr. Goldstone in September, 2002 - five months after the trial's completion - that Mr. Goldstone had not entered into a stipulation with Mr. Healey, and represented to Mr. Gill that "the Court and all parties had agreed that the issue of past medical expense and other special damages, had been deferred until after the conclusion of the damages trial in chief, when a separate hearing was to take place." [Ibid, ¶¶ 4 and 5]. Mr. Gill also mentions contacting chambers on September 27, 2002, and being purportedly advised that it would be "inappropriate" for the Court to receive a letter concerning scheduling a hearing while the decision on damages was still pending. [Ibid, ¶6]. It should go without saying that however Mr. Gill chose to interpret chambers' remarks, what he was being told was that he was not an attorney who had filed an appearance or had any standing in a matter that was still sub judice, and that any concerns he had should be addressed to Mr. Goldstone.

In terms of any legal argument presented by Mr. Goldstone to support his application, he states "[t]he hearing being requested is really nothing more than a hybrid of the type of hearing provided for in CPLR 4545, which is post-trial, and after an award has been made." [Affirmation by Bruce H. Goldstone, ¶8]. In his memorandum of law, he reminds the Court that it is the Court that is the final arbiter of the record, and of establishing what took place during the trial.

It is one thing to admit to having failed to make a clear record on behalf of your client and to ask the Court to consider addressing a matter you have not presented at the trial in chief, and it is quite another to engage in the behavior evident in this application. Remarks by the Court transcribed on the record have been taken out of context and are given whatever meaning counsel chooses to ascribe to them. Affidavits from individuals who attended portions of the 13 day trial on damages attest to remarks by the Court that are not even part of its regular vocabulary. For example, in some 19 years on the bench the Court cannot recall ever having used the phrases "disrupt the orderly presentation of witnesses" or "disturb the flow of the trial," both of which phrases appear in at least two of the affidavits presumably prepared by Counsel's office and executed by the affiants. No stipulation, or application was ever made a part of this record to the pointed effect that a post-trial hearing on past expenses was to be had.

In an exhaustive decision on damages, after an extended trial, Claimant was given a total award of $12,658,778.82. It was specifically noted in the decision that no evidence of past medical or other expenses was presented. Indeed the Court was mindful of the omission, and assumed Counsel for Claimant had some strategic purpose in not presenting any such evidence. Since the amount of future damages exceeded $250,000.00, a structured judgment was and is required [See, §5041(e) Civil Practice Law and Rules]. Judgment continues to be held in abeyance pending a hearing pursuant to Article 50-B Civil Practice Law and Rules. The Court continues to suggest that the parties agree upon an attorney's fee calculation, and the discount rate to be applied to formulate a structured settlement of their own [See, §5041(f) Civil Practice Law and Rules.] In the decision, in the event of a failure to agree, each party was directed to submit a proposed judgment in writing, conforming to the requirements of Article 50-B Civil Practice Law and Rules within 45 days of the service of the decision upon them by the Clerk of the Court. Clearly, this time frame has expired.
A collateral source hearing, provided for in Civil Practice Law and Rules §4545(c), and raised by Defendant as an affirmative defense, was duly requested. The parties are directed to submit their proposed judgments concerning a structured settlement by September 3, 2003, on notice. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court with regard to the collateral source issue and the structured settlement.

Claimant's motion number M-66715 is in all respects denied.

So Ordered.

July 24, 2003
White Plains , New York

Judge of the Court of Claims

[1]The "July 1" reference is the date discussed for submission of post-trial memoranda of law on the previous Thursday, March 28, 2002, when Mr. Goldstone was debating calling rebuttal witnesses.
[2]"T" denotes references to the trial transcript
[3]All of the proceedings before this court are recorded by an electronic machine rather than a court stenographer. There are individual microphones located at Claimant's counsel's table, Defendant's counsel's table, the witness stand, and at the Judge's bench. These microphones record the sound from each location on a separate track of the tape. They do not amplify one's voice or serve as a PA system in the courtroom. Thus discussion between counsel may be picked up by the microphone and recorded, but not heard by the Judge who is located some distance away at the bench.