New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-019-584, Claim No. 108540, Motion No. M-69108


Synopsis


Claimant's motion for a trial preference is denied.

Case Information

UID:
2004-019-584
Claimant(s):
ROBERT JOHNSON, 00-R-3884
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):
108540
Motion number(s):
M-69108
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ROBERT JOHNSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: G. Lawrence Dillon, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 12, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for a trial preference pursuant to CPLR 3403. The State of New York (hereinafter "State") opposes the motion.

Claimant asserts that after entering the State correctional system he was diagnosed with Hepatitis C, but did not receive any medical treatment for his condition. Additionally, claimant alleges that he contracted Hepatitis A and B because the State failed to provide him with the appropriate vaccinations. The claim alleges an accrual date of November 14, 2003. This claim was filed with the Clerk of the Court on November 19, 2003 and served on the Office of the Attorney General by certified mail, return receipt requested, on November 21, 2003.[1]


By way of this motion, claimant seeks a trial preference because he is due to be released in July 2005 and states his condition has worsened. The court will make every effort to reach this claim prior to claimant's scheduled release in July of 2005. That having been said, however, in the event this matter is not reached for trial prior to claimant's release, claimant appears to be under the mistaken impression that his claim will somehow be forfeited. That is not the case. In the event claimant is released prior to trial, he will still be entitled to a trial on his claim.[2] Finally, if claimant is released prior to this trial, it will be claimant's responsibility to keep the court advised of his current address. (22 NYCRR 206.6 [f]).


Consequently, for the reasons stated above, it is ORDERED that claimant's motion for a trial preference, Motion No. M-69108, is DENIED in accordance with the foregoing.


October 12, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Claim, filed November 19, 2003.
  2. DECISION AND ORDER, Lebous, J., Claim No. 108540, Motion No. M-67834, filed February 9, 2004.
  3. Notice of Motion No. M-69108, dated September 7, 2004, and filed September 13, 2004.
  4. "Arguments to Support Request", of Robert Johnson, sworn to September 7, 2004.
  5. Affirmation of G. Lawrence Dillon, AAG, in opposition to motion, dated and filed September 22, 2004, with attached exhibit.

[1]The State previously moved for dismissal of this claim. This court granted the State's motion with respect to alleged violations of the United States Constitution and 42 U.S.C. § 1983, but found the claim sufficiently stated causes of action alleging negligence, medical malpractice and deliberate indifference to medical needs. (Johnson v State of New York, Ct Cl, January 29, 2004, Lebous, J., Claim No. 108540, Motion No. M-67834 [UID No. 2004-019-511]). Selected unreported decisions from the Court of Claims are available via the Internet at

[2]The major differences in the scheduling of a trial for an out-of-custody pro se litigant compared to a pro se inmate are the need for the filing and service of a note of issue (22 NYCRR § 206.12 [a]) and that the trial would be held in the Court of Claims courtroom in Binghamton, New York and not a correctional facility.