New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2005-032-002, Claim No. 106364, Motion No. M-69133


Synopsis


Motion for trial preference (CPLR 3403[a]) is denied. Inmate pro se claims are tried in the order they were filed.


Case Information

UID:
2005-032-002
Claimant(s):
MARCUS ORTIZ
Claimant short name:
ORTIZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106364
Motion number(s):
M-69133
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Marcus Ortiz, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kevan Acton, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 7, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, who alleges that correction officers at Clinton Correctional Facility failed to protect him from a foreseeable assault by another inmate, has moved to set a trial date, asserting that the defendant State of New York has had ample time to respond to claimant's settlement offer. He states that intervention by the Court is needed to bring this matter to conclusion. The Court has not received any submission from defendant.
CPLR 3403 (a) provides that the following actions are entitled to a trial preference:

1. an action brought by or against the state, or a political subdivision of the state, or an officer or board of officers of the state or a political subdivision of the state, in his or its official capacity, on the application of the state, the political subdivision, or the officer or board of officers;


2. an action where a preference is provided for by statute;


3. an action in which the interests of justice will be served by an early trial;


4. in any action upon the application of a party who has reached the age of seventy years;


5. an action to recover damages for medical, dental or podiatric malpractice; and


6. an action to recover damages for personal injuries where the plaintiff is terminally ill and alleges that such terminal illness is a result of the conduct, culpability or negligence of the defendant.


Claimant has failed to set forth any facts to suggest that the instant claim falls into any one of these categories.


Unless they qualify for a preference, inmate pro se claims are tried at the facility at which the claim accrued or a nearby correctional facility and are scheduled by filing date order, meaning that the older filed claims will be tried first. It is impossible to estimate when any individual claim will be scheduled for trial. Inmates are notified by mail as to the date and place of trial. Claimant's motion is denied.


February 7, 2005
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant's motion to secure a trial date:

1. Notice of Motion and Supporting Affidavit of Marcus Ortiz, pro se;

2. Affirmation in Opposition (none received);

Filed papers: Claim; Answer