New York State Court of Claims

New York State Court of Claims

SANTOS v. THE STATE OF NEW YORK, #2005-016-019, Claim No. 107865, Motion No. M–69568


Motion to extend note of issue deadline was granted.

Case Information

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):

Alan C. Marin
Claimant’s attorney:
Herzfeld & Rubin, P.C.By: John M. Guthrie, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Leslie A. Stroth, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 1, 2005
New York, NY

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant Albert Santos’ motion for an order granting him additional time to file a note of issue. In the underlying claim, it is alleged that on June 12, 2001, Mr. Santos slipped and fell on water near his bed in his room at the Bronx Psychiatric Center. At a December 15, 2003 conference, the parties entered into a Stipulation and Order which directed that the note of issue be filed by December 31, 2004, and which was signed by Joseph Fishman, Esq. on behalf of claimant. According to the December 29, 2004 affirmation of John M. Guthrie (the “Guthrie Aff.”), “[s]everal months ago, the employment relationship between Joseph Fishman and Herzfeld & Rubin was terminat[ed].” Mr. Guthrie further states that in December of 2004, the file was reassigned to him and “[u]pon . . . inspecting [the file], I discovered that the note of issue deadline was fast approaching and it would not be possible to complete all outstanding discovery . . . before the filing deadline.” See ¶¶7 though 9 of the Guthrie Aff.

Defendant opposes this motion, asserting that after the December 15, 2003 conference, defense counsel “never heard from Claimant’s attorney again, despite several telephone calls to counsel’s office . . .” See ¶8 of the February 8, 2005 affirmation of Leslie A. Stroth.

Defendant also argues that claimant has not established that he has the legal capacity to sue. However, such issue is not relevant to his motion to extend the note of issue deadline. In any event, aside from a general assertion of same, defendant has pointed to no specific prejudice it would suffer should this motion be granted.

Accordingly, having reviewed the submissions[1], IT IS ORDERED that motion no. M-69568 be granted and that the deadline for filing the note of issue shall be extended to October 31, 2005. IT IS FURTHER ORDERED that counsel for claimant shall advise the Court, in writing, no later than July 29, 2005, as to the status of this case.

March 1, 2005
New York, NY, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits A through C; defendant’s affirmation in opposition with exhibits A and B; and claimant’s reply affirmation.