New York State Court of Claims

New York State Court of Claims

SULLIVAN v. THE STATE OF NEW YORK, #2004-030-593, Claim No. 106551, Motion No. M-68671


Synopsis



Case Information

UID:
2004-030-593
Claimant(s):
LYNN D. SULLIVAN
Claimant short name:
SULLIVAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106551
Motion number(s):
M-68671
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
ADAM M. THOMPSON, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
November 12, 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 Defendant's motion


to compel the production of an inmate for deposition:

1,2 Notice of Motion, Affirmation in Support by Jeane L. Strickland Smith, Assistant Attorney General, and attached proposed Order

3-6 Filed Papers: Claim, Answer, Note of Issue and Certificate of Readiness

The Court has not considered the application on a substantive basis based upon the Claimant having filed a Note of Issue and Certificate of Readiness on September 7, 2004, and the Defendant's failure to take any action to correct the attestation contained in the Certificate of Readiness that all discovery is complete.

By letter dated July 20, 2004 sent certified mail, return receipt requested pursuant to Civil Practice Law and Rules §3216(b), Counsel for Claimant was directed to resume prosecution by serving and filing a Note of Issue within ninety (90) days of receipt of the letter. At the time of the writing, the Note of Issue remained outstanding from May 30, 2004.

In the meantime, Defendant brought Motion Number M-68671 - calendared by the Clerk's Office for July 21, 2004 - to compel the production of an inmate for deposition. It was submitted without opposition on that date.

By letter dated August 24, 2004 the Court reminded the parties that no stipulation extending the time within which to file a Note of Issue had been filed, that Claimant was now under directive to serve and file a Note of Issue and Certificate of Readiness or face dismissal, and that therefore decision on Defendant's motion regarding the deposition of the inmate was suspended, given the possibility that it would be rendered moot by dismissal of the Claim.

Claimant filed a Note of Issue and Certificate of Readiness on September 7, 2004. The latter document attests to the completion of all discovery. No stipulation to depose the inmate requested by Defendant is included in the Certificate of Readiness. Two months after these documents have been filed, Defendant has done nothing to further secure the deposition of this inmate. While the Court is aware that the application to depose the inmate was submitted without opposition from Claimant, nonetheless, the failure to act upon what may be a misstatement by Claimant in the Certificate of Readiness, and the continued failure by both parties to reduce agreements - if any - to properly executed and filed stipulations, or to present genuine disputes to the Court for resolution, is now chargeable to the Defendant.

Accordingly, Motion Number M-68671 is deemed abandoned and is hereby denied.


November 12, 2004
White Plains, New York

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