New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2004-009-08, Claim No. 104583, Motion Nos. M-67578, CM-67596


Synopsis


Case Information

UID:
2004-009-08
Claimant(s):
DAVID DIAZ, a/k/a BORIS FELIX
Claimant short name:
DIAZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104583
Motion number(s):
M-67578
Cross-motion number(s):
CM-67596
Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
SCHELL & SCHELL, P.C.
BY: George A. Schell, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Gordon J. Cuffy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 10, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought a motion pursuant to CPLR Rule 3108 for a commission to authorize the taking of a deposition on written questions of the claimant in the Dominican Republic. Defendant has responded with a cross-motion seeking an order dismissing the claim based upon a failure of the claimant to provide a certificate of merit as required by CPLR § 3012-a.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit 1,2


Notice of Cross-Motion, Affirmation, with Exhibit 3,4

Affidavit of George A. Schell, Esq., sworn to 11/14/03, CPLR § 3012-a Certification 5,6

As noted above, in its cross-motion defendant seeks dismissal of this claim based upon a failure of the claimant to provide a certificate of merit in this medical malpractice action as required by CPLR § 3012-a. In response to the cross-motion, claimant has submitted the required certification (see Item 6). Since the failure to serve such certificate of merit is not considered a pleading default (see, Dye v Leve, 181 AD2d 89), and since claimant has now served the required certificate, defendant's cross-motion seeking dismissal of the claim has been rendered moot, and is therefore denied.

Turning to claimant's motion, in his supporting affidavit claimant's attorney indicates that subsequent to initiating this claim, claimant was deported to the Dominican Republic. Furthermore, claimant's counsel has affirmed that attempts were made to secure claimant's re-entry into the United States for purposes of attending an examination before trial, without success. It appears from the papers before the Court that claimant still has not obtained such permission, and that such permission is not to be forthcoming. Claimant has therefore satisfied this Court that his deposition should be taken on written questions.

Accordingly, the Court grants claimant's application for a commission to take claimant's deposition on written questions, and directs that said deposition should be conducted pursuant to the provisions set forth in CPLR Rule 3109. Furthermore, claimant is directed to advise the Court when the deposition is completed.

Therefore, it is

ORDERED, that Motion No. M-67578 is hereby GRANTED; and it is further

ORDERED, that Cross-Motion No. CM-67596 is hereby DENIED.


February 10, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims