New York State Court of Claims

New York State Court of Claims

DOUVARTIDIS v. THE STATE OF NEW YORK, #2005-030-513, Claim No. 104450, Motion No. M-69504


Synopsis



Case Information

UID:
2005-030-513
Claimant(s):
FOTIOS DOUVARTIDIS
Claimant short name:
DOUVARTIDIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104450
Motion number(s):
M-69504
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
ELAN WURTZEL, P.C.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
LUBINSKY & KESSLER OF COUNSELBY: JUDITH L. LUBINSKY, ESQ.
Third-party defendant's attorney:

Signature date:
February 16, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read and considered on Claimant's motion M-69504 for a continued stay of all proceedings:
1,2 Notice of Motion to Stay the Trial; Affirmation in Support of Motion to Stay the Trial and attached exhibits

3-5 Filed Papers: Claim, Answer, Decision and Order granting prior application for Stay, Douvartidis v State of New York, Claim No. 104450, Motion No. M-68751, UID #2004-030-568 (Scuccimarra, J., August 26, 2004).

No Opposition Filed

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

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.

Fotios Douvartidis, the Claimant herein, alleges in Claim Number 104450 that the State of New York was negligent and failed to provide a safe work place in violation of Labor Law §§200, 240, and 241(6), when he was injured on or about April 21, 2000 while working as a laborer at a construction site at the State University of New York College at Purchase. Claimant's employer at the site was Positive Electrical Associates, Inc. Pursuant to a preliminary conference order "So Ordered" by the Court on March 1, 2004, the Note of Issue and Certificate of Readiness was to have been filed after completion of consent discovery on or before October 30, 2004.

The Court granted Claimant a prior stay of all proceedings herein including discovery until December 1, 2004, in a Decision and Order filed August 26, 2004. [Affirmation in Support, Exhibit A]. Claimant was then under indictment in Nassau County, charged with First Degree Perjury and Workers Compensation Fraud stemming from his collection of workers compensation benefits based upon the work-related injury he allegedly suffered in April 2000, that is the subject of this Claim. Pursuant to that earlier Decision and Order, Claimant now makes another motion seeking an additional stay pending the resolution of the criminal prosecution.

In support of the present application for an extension of the stay, Claimant has attached an Affirmation from Benedict S. Gullo, Jr., the attorney representing Claimant on the criminal matter. [Affirmation in Support, Exhibit B]. He indicates that the case is pending under Nassau County Docket Number 2004NA00754, that since the prior stay Claimant was involved in an auto accident requiring "multiple surgeries . . . [and that] it is very likely that he will require several months to recuperate before he can partake in the preliminary proceedings and criminal conference that is now scheduled for January 12, 2005 . . . " [Ibid, ¶4]. Mr. Gullo notes that it is his intent to seek adjournment of the criminal proceedings in order to facilitate Claimant's recovery.

Counsel of record herein joins in Mr. Gullo's suggestion that the stay could be lifted and discovery would recommence on thirty (30) days notice once the criminal matter is resolved.

The Defendant has not submitted any opposition.

While the Court agrees that the Claimant has established good cause for the imposition of a continued stay, the Court also finds that issuance of such an indefinite stay as the Claimant suggests would not be just given the original date of accrual, and the uncertainty as to the time frame for the criminal proceedings.

Accordingly, Claimant's motion number M-69504 for a continued stay of all proceedings is hereby granted in part, and it is hereby

ORDERED, that all proceedings in this claim are stayed effective immediately, until September 1, 2005, and it is further

ORDERED, that Counsel notify this Court in writing within five (5) days of any change of status in this matter and, in any event upon completion of the stay, the parties are directed to report to the Court, in writing, the status of all proceedings, and it is further

ORDERED, that should Counsel for Claimant seek further extension of the stay such application should be made by notice of motion supported by appropriate affidavits on or before September 1, 2005.

February 16, 2005
White Plains, New York

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