New York State Court of Claims

New York State Court of Claims

JO v. THE STATE OF NEW YORK, #2005-019-571, Claim No. 110456, Motion No. M-70581


Synopsis


The State's motion to strike the note of issue and certificate of readiness is granted.

Case Information

UID:
2005-019-571
Claimant(s):
MEE JO
Claimant short name:
JO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110456
Motion number(s):
M-70581
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MEE JO, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 19, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State of New York (hereinafter "State") moves for an order striking the note of issue and certificate of readiness filed with the Clerk of the Court on August 12, 2005. Claimant, appearing pro se, opposes the motion.

This claim alleges that a State Department of Education employee released false information to the media regarding claimant and her daughter regarding an underlying dispute with the daughter's school district. The claim seeks damages for slander and defamation.


This claim was filed with the Clerk of the Court on February 4, 2005 and served upon the Office of the Attorney General by certified mail, return receipt requested, on February 9, 2005. The State filed a verified answer on March 14, 2005.[1] Claimant filed a note of issue and certificate of readiness with the Clerk of the Court on August 12, 2005.


By way of this motion, the State seeks to strike the note of issue and certificate of readiness. According to 22 NYCRR 206.12 (d):
[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect....

The State received this note of issue on August 12, 2005 and filed this motion to strike on August 18, 2005 within the applicable time period.


Turning to the merits of the motion, the State argues that the certificate of readiness inaccurately represents that all discovery proceedings are now complete. To the contrary, the State avers that it has not yet conducted the deposition of claimant, although it is currently scheduled. Claimant asserts that she is anxious for a speedy trial of her claim. Additionally, the court notes that a preliminary conference has not yet been scheduled in this matter.


The court accepts the State's representations that discovery is not yet completed. The court notes that even if claimant's deposition has recently been held that may well lead to the need for additional depositions and/or discovery demands. Consequently, the court will strike the note of issue and certificate of readiness and schedule a preliminary conference for the purpose of creating a discovery schedule.


In view of the foregoing, it is ORDERED that the State's motion to strike the note of issue and certificate of readiness, Motion No. M-70581, is GRANTED and the Clerk of the Court is directed to strike said note of issue.


The court has scheduled a preliminary conference to be held on October 18, 2005 at 9:00 a.m. at the Court of Claims, State Office Building, 44 Hawley Street, 18th Floor, Binghamton, New York.
The personal attendance of both the claimant and the assistant attorney general will be required.

September 19, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Claim, filed February 4, 2005.
  2. Verified Answer, filed March 14, 2005.
  3. DECISION AND ORDER, Lebous, J., Claim No. 110456, Motion No. M-70182, filed July 8, 2005.
  4. Note of Issue, filed August 12, 2005.
  5. Notice of Motion No. M-70581, dated August 16, 2005, and filed August 18, 2005.
  6. Affirmation of Joseph F. Romani, AAG, in support of motion, dated August 16, 2005, with attached exhibit.
  7. "Affirmation to Defendant's Motion to Strike Action From Calendar", of Mee Jo, in opposition to motion, dated August 18, 2005, and filed August 22, 2005.
  8. Reply Affirmation of Joseph F. Romani, AAG, in support of motion, filed September 8, 2005, with attachment.

[1]Claimant previously moved to strike the State's affirmative defenses. This court denied claimant's motion with respect to the State's first, third, fourth, fifth and sixth affirmative defenses, but granted the motion with respect to the State's second affirmative defense. (Jo v State of New York, Ct Cl, June 24, 2005, Lebous, J., Claim No. 110456, Motion No. M-70182 [UID No. 2005-019-543]). Selected unreported decisions from the Court of Claims are available via the Internet at