Filed Papers: Claim; Answer; Note of Issue and Certificate of Readiness
Defendant seeks to strike the note of issue and certificate of readiness served
and filed on June 17, 2004.
A brief chronological retrospective will neatly summarize proceedings to this
date. The claim herein was filed on December 24, 2001. It alleges in essence
that on October 5, 2001, Claimant, an inmate under the custody and control of
the Department of Correctional Services, was injured in an accident while a
passenger in a motor vehicle allegedly owned by the Department of Correctional
Services (DOCS) and driven by one Joseph Mruzik. Issue was joined and an
amended answer was filed on February 5, 2002. After a preliminary conference
held on April 23, 2002, at which Claimant’s counsel appeared by telephone,
I issued a preliminary conference order that ordered several interim dates of
compliance with discovery and other pretrial proceedings, ordered a unified
trial and ordered that a note of issue and certificate of readiness be filed on
or before January 15, 2003.
The Court’s file went unsullied with any further filings or
correspondence until March 25, 2004 when I directed Claimant’s counsel to
resume prosecution by serving and filing a note of issue and certificate of
readiness (CPLR 3216[b]) within 90 days or face dismissal of the claim for
want of prosecution (CPLR 3216[a]).
Claimant’s counsel dutifully filed the note of issue on June 17, 2004,
with the certificate of readiness indicating, inter alia, that: (1) all
pleadings were served; (2) bill of particulars had been served; and (3)
“physical examinations completed” was not checked as the trial was
purportedly to be bifurcated.
That filing caused the Defendant to make the instant motion, asserting that
none of the above had been accomplished. Defendant affirms that it was never
served with a response to its demand for a bill of particulars or other
disclosure demands, no medical authorizations were provided, no physical
examinations were done, etc. In sum, Claimant’s counsel had done nothing
with respect to the instant claim in this Court, other than file the note of
issue more than two years after issuance of the preliminary conference
In response to the motion, served on June 25, 2004 and made returnable on July
21, 2004, Claimant’s counsel requested, and I granted, a brief adjournment
to July 23, 2004. Counsel thereupon affirmed that he had supplied the
authorizations, provided responses to certain other discovery demands, filed his
verified bill of particulars, consented to any required physical examinations of
his client, and affirmed that he is in full compliance with the combined
demands, and seeks a new date for the completion of depositions.
While Claimant’s counsel has demonstrated a blatant disregard of my
scheduling order and made disingenuous assertions in the certificate of
readiness and generally demonstrated a degree of contempt for the Court’s
authority, I will not, at this time, impose any sanctions on him.
Counsel’s future conduct and his compliance with future orders will guide
any reconsideration of this question.
Accordingly, the motion is granted and the note of issue and certificate of
readiness are stricken. The Defendant shall have as much time to complete any
discovery, etc., as it feels is necessary to prepare its defense. This matter
will be scheduled shortly under separate cover for another preliminary
conference, at which time a new scheduling order will be issued.