New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-013-062, Claim No. 105385, Motion No. M-68695


Synopsis



Case Information

UID:
2004-013-062
Claimant(s):
MARK JOHNSON, a/k/a WILLIAM UTSEY
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105385
Motion number(s):
M-68695
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
CHARLES BERKMAN, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 20, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On the 21st day of July 2004, the following papers were read on motion by Defendant for an order striking the note of issue and certificate of readiness:

Notice of Motion, Affirmation and Exhibit Annexed

Opposing Affirmation
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][3]) 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 order.

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.


December 20, 2004
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims