New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2004-030-595, Claim No. 108564, Motion No. M-69143


Case Information

AMANDA ORTIZ, Administratrix of the Estate of RICHARD RODRIGUEZ
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
December 7, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Claimant's motion for a stay of all proceedings in this Court until the conclusion of the action in the United States District Court for the Southern District of New York:
1,2 Notice of Motion; Affirmation by Robert M. Ginsberg, Attorney for Claimant and attached exhibit

  1. Affirmation by Dewey Lee, Assistant Attorney General
  2. Reply Affirmation by Robert M. Ginsberg, Attorney for Claimant
5,6 Filed Papers: Claim, Answer

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

Claimant alleges in Claim Number 108564 that Defendant's agents failed to protect the decedent from an attack by fellow inmates on July 17, 2003 while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven) resulting in his death. Amanda Ortiz, the Claimant herein, was appointed administratrix for the Estate of Richard Rodriguez, decedent, on October 2, 2003. The Claim was filed on November 24, 2003. Claimant has also instituted a civil action in the United States District Court for the Southern District of New York seeking redress against individual correction officers based upon alleged violations of 42 USC §1983. [See Exhibit A, Affirmation by Robert M. Ginsberg]. The action appears to have been commenced on April 7, 2004. [Id].

The parties entered into a preliminary conference order (PCO) that was "so ordered" by the Court on March 16, 2004, and provided that the Note of Issue and Certificate of Readiness would be filed on or before September 19, 2005. When this Court held a compliance conference on September 13, 2004, the Court learned that the federal action had been commenced, and that no discovery had been undertaken in this case, despite the deadlines contained in the PCO. Counsel for the Claimant thought Claimant might move for a stay of proceedings in this Court, and the Court directed that such motion, if any, be made within thirty (30) days.

As discussed at the compliance conference referred to, Claimant now moves to stay all proceedings in this claim, pending the conclusion of the federal court action. Aside from the tactical advantage of, for example, being able to obtain depositions of those who might be deemed non-parties in this court, i.e.: some of the former employees named in the federal suit; no real reason save convenience is advanced for seeking a stay in this Court. Indeed, no authority is presented for the request.

The Assistant Attorney General points out the perceived tactical advantage of concluding the federal action first, as well as the lack of any legal or practical imperative for staying the proceedings in this Court. Moreover, he indicates a willingness to conduct joint discovery with the Assistant Attorney General handling the federal suit, and asks that the motion be denied.

In his Reply Affirmation, the attorney for the Claimant notes that a discovery conference is scheduled in federal court for October 22, 2004, and that he anticipated entry into a schedule agreeable to the two Assistant Attorney Generals involved in this and the federal court actions, and hopefully agreeable to Judge P. Kevin Castel - the judge assigned the matter in United States District Court - and the undersigned.

Civil Practice Law and Rules § 2201, applicable in the Court of Claims pursuant to Court of Claims Act § 9(9), provides that ". . . [e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just." The party seeking the stay must show "good cause."

In this case, no good cause for the imposition of a stay has been advanced, and the alternative solution of embarking on joint discovery has been proposed. Indeed, the parties may well have already entered into a stipulation concerning discovery, but have yet to provide this Court with same.

Accordingly, Motion Number M-69143 requesting a stay of all proceedings pending in this Court pending resolution of the federal court action is in all respects denied. The Claimant is directed to provide the Court with a copy of any stipulation or Order concerning discovery entered into after the conference held in federal court on October 22, 2004, and is also directed to provide a modified PCO for settlement based upon whatever joint discovery has been instituted, and containing appropriate time frames for filing a Certificate of Readiness and Note of Issue, on or before January 5, 2005.

December 7, 2004
White Plains, New York

Judge of the Court of Claims