CONIKER v. THE STATE OF NEW YORK, #2003-030-561, Claim No. 86901, Motion No.
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.
MICHELLE L. CONIKER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
BRUCE H. GOLDSTONE, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JOHN M. HEALEY, ASSISTANT ATTORNEY GENERAL
July 24, 2003
See also (multicaptioned
The following papers, numbered 1 to 8, were read and considered on Claimant's
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
Affirmation of John M. Healey, Assistant Attorney General
Reply Affirmation of Bruce H. Goldstone, Esq.
6-8 Filed Papers: Claim, Answer, Decision and Order filed February 5,
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. GOLDSTONE: Except for the hearing part.
MR. GOLDSTONE: I mean, you don't want to have a stip on that?
MR. GOLDSTONE: On the (inaudible one word).
MR. HEALEY: I'm not sure I'm following you. With regard to after the Court
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
. So that's the
same, and I guess that's it. There's nothing further at this time. All
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].
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
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,
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
Claimant's motion number M-66715 is in all respects denied.
July 24, 2003
Plains , New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
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.
"T" denotes references to the trial
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.