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,
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
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.