New York State Court of Claims

New York State Court of Claims

McFADDEN v. THE STATE OF NEW YORK, #2004-030-559, Claim No. 106235, Motion No. M-68500


Synopsis



Case Information

UID:
2004-030-559
Claimant(s):
REGINALD McFADDEN
Claimant short name:
McFADDEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106235
Motion number(s):
M-68500
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
REGINALD McFADDEN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 4, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 6, were read and considered on Claimant's motion


to consolidate the present claim with two others pending before another judge:

1,2 Notice of Motion, Affidavit in Support by Reginald McFadden

3 Affirmation in Opposition by Barry Kaufman, Assistant Attorney General

4-6 Filed Papers: Claim, Answer; McFadden v State of New York, Claim Nos. 103390 et al, Motion Nos. M-66233 et al. (Hard, J., July 8, 2003).[1]

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Denied. The Court agrees with the argument presented by the Assistant Attorney General that this is a roundabout way to reargue the prior Decision and Order of Judge Hard, filed on July 8, 2003, deciding Claimant's motion to consolidate this claim among others. Indeed, Judge Hard mentions the present claim in her decision, noting, among other things: "The cause of action relating to medical treatment in Claim No. 106235 raises the question of whether claimant has been provided with accommodations suitable to a hearing impaired person under the ADA (Americans with Disabilities Act). To the extent that this cause of action arose in Clinton Correctional Facility, it is duplicative of Claim No. 104262. The other causes of action contained in Claim No.106235 do not relate to medical treatment and arose at Downstate Correctional Facility, to which another judge of this Court is assigned."[2]

On April 30, 2004, when this claim was scheduled for trial by video conference at Sing Sing Correctional Facility (hereafter Sing Sing), and this Court granted Claimant's request for an adjournment, Claimant referred to Judge Hard's Decision and Order concerning consolidation of his claims, and was told - among other things - that this claim had not been consolidated, discovery was complete on this claim and that no further adjournments of the trial would be granted.

In the present motion, Claimant says only since the other claims were consolidated, this one should be as well. He also suggests in the alternative that this claim be dismissed without prejudice should consolidation not be granted in order to save this court expense and time. He does not raise any particular grounds for consolidation beyond saying that the claim is "factually related" to the others, an issue already discussed by Judge Hard.

The statute regarding consolidation provides ". . . When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other order concerning proceeding therein as may tend to avoid unnecessary costs or delay." See Civil Practice Law and Rules §602(a). By essentially separating out those aspects of this claim that duplicate those in other claims pending before her, Judge Hard already determined the efficacy of consolidation. As noted by the Assistant Attorney General, Claimant was served with a copy of Judge Hard's Decision and Order on July 14, 2003. Any motion addressed to that determination - without even addressing whether same should have been made before Judge Hard - should have been made within thirty (30) days of July 14, 2003. See generally Civil Practice Law and Rules §2221(d)(3).

With respect to dismissal, Claimant has not specifically withdrawn the present Claim, thus the Claim will not be dismissed at this time. Moreover, any dismissal at this juncture would be with prejudice.

Claim Number 106235 is scheduled for trial on September 17, 2004. It is suggested that Claimant refrain from further unnecessary and duplicative motion practice and instead concentrate on presenting the claim before this Court on that date.

August 4, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] Judge Hard's Decision and Order concerning consolidation related to the following claims, including this one: 103390, 103763, 104262, 105851, 105938, 105958, 106195, 106216, 106217,106235, 106486, 106802, 106926, 107038,, 107177,107203, 107357, 107358, 107510, and 107633.
[2] Judge Hard is referring to the undersigned.