New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2004-009-34, Claim No. 99884, Motion No. M-68140


Synopsis


Case Information

UID:
2004-009-34
Claimant(s):
BUTCH WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99884
Motion number(s):
M-68140
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
GALVANO & XANTHAKIS, P.C.
BY: Christopher Michael Collins, Esq., Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 2, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order vacating claimant's previously filed note of issue, as well as an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


Affirmation in Opposition, with Exhibits 3

Correspondence from Claimant's Attorney, dated May 14, 2004 4


Sur-Affirmation in Opposition, Certificate of Merit 5,6 As set forth in the affirmation of defendant's attorney (see Item 2, par. 5), defendant was served with a note of issue and certificate of readiness by claimant's attorney on March 1, 2004. This note of issue was filed with the Clerk of the Court of Claims on February 26, 2004. It is defendant's contention that this claim is not, in fact, ready for trial, and that claimant's attorney admitted as much in a statement submitted with the note of issue. Defendant therefore has moved herein for an order vacating the note of issue

Additionally, the Court recently received correspondence from claimant's attorney (see Item 4), indicating that claimant is presently unavailable and therefore is unable to proceed with the trial of this claim. Claimant's attorney has requested that this claim be stricken from the Court's trial calendar.

Based upon the Court's review of the papers submitted herein, it is apparent that this claim is not ready for trial, and the note of issue previously served and filed herein should therefore be vacated.

Defendant also seeks dismissal of the claim based upon claimant's failure to file and serve a certificate of merit as required by CPLR § 3012-a.

It has been held, however, that the initial failure to file such a certificate does not equate to a default in pleading, and therefore a dismissal of the proceeding should not immediately result from such a failure to serve the certificate (Dye v Leve, 181 AD2d 89; Kolb v Strogh, 158 AD2d 15).

Furthermore, the Court is aware that such a certificate of merit has now been filed with the Clerk of the Court of Claims as of May 13, 2004, thereby rendering this aspect of defendant's motion moot.

Accordingly, based upon the foregoing, it is

ORDERED, that Motion No. M-68140 is hereby GRANTED, in part, and claimant's previously served and filed note of issue and certificate of readiness is hereby stricken; and it is further

ORDERED, that the aspect of defendant's motion seeking dismissal of the claim based upon a failure of the claimant to serve and file a certificate of merit is hereby DENIED as moot; and it is further

ORDERED, that a conference will be scheduled as soon as practicable by the Court to review the status of this claim and to set time frames for the completion of discovery and for the filing of a new note of issue and certificate of readiness.


June 2, 2004
Syracuse, New York

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