New York State Court of Claims

New York State Court of Claims

SCHREIBER-CROSS v. THE STATE OF NEW YORK, #2005-033-552, Claim No. 107259, Motion No. M-70647


Synopsis



Case Information

UID:
2005-033-552
Claimant(s):
STACY D. SCHREIBER-CROSS, as Administratrix of the Estate of BRYAN E. CROSS, Individually and as p/n/g of BRADLEY H. CROSS and BRYAN M. CROSS, Infants
Claimant short name:
SCHREIBER-CROSS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107259
Motion number(s):
M-70647
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Ginsberg & Broome, P.C.By: Robert M. Ginsberg, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 9, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is a claim by Stacy D. Schreiber-Cross (hereinafter “claimant”) as Administratrix of the Estate of Bryan E. Cross. The claim arises from the alleged negligence of the State of New York as the result of a traffic accident at the intersection of Route 25A and Columbia Street, Port Jefferson Station, New York, on February 20, 2002.

The claim was filed in the Clerk’s Office on January 30, 2003. The State interposed an answer on March 6, 2003. Thereafter, the first conference with claimant’s attorney was held on April 23, 2003.

On September 15, 2004, a final pre-trial conference was held. At that conference, both parties represented that discovery, as to liability, was complete and they were prepared for trial. As a result of the conference, the Court issued a daily report (an order pursuant to the Uniform Rules of the Court of Claims §206.10) setting forth: a deadline of December 31, 2004 for filing a motion for summary judgment; a deadline to exchange expert disclosure by April 24, 2005; and scheduling trial to begin on May 24, 2005.

On May 24, 2005, the trial was adjourned as a result of claimant’s counsel’s medical condition and rescheduled for August 30, 2005. Also, on May 24, 2005, the Court accepted the expert disclosure of the parties as of that date and closed the submission of additional experts.

On or about August 3, 2005, claimant submitted a motion to the Clerk of the Court of Claims for the following relief: 1) an order granting partial summary judgment in favor of claimant as to liability; 2) an order allowing the amplification of the bill of particulars concerning the improper installation of a guardrail and pole; and, 3) an order allowing claimant to bring in a new expert.

Initially, the motion was rejected by this Court without being heard. Claimant tried to commence a special proceeding in the Appellate Division to seek to have this Court consider the motion. However, CPLR 506 does not provide for special proceedings which involve a judge of the Court of Claims to be commenced in the Appellate Division. Claimant’s remedy was limited to seeking review in the Supreme Court.[1]

Prior to claimant’s petition being heard in Supreme Court, this Court ruled on claimant’s original motion sua sponte. The Court denied claimant’s motion by way of an order filed August 31, 2005. In relevant part, the order states:
The branch of claimant’s motion concerning the amplification of the bill of particulars is for discovery. The Uniform Rules for the Court of Claims §206.8(b) states that no motion for discovery will be placed on the calendar unless counsel for both parties has conferred with the judge. This was not done prior to claimant’s submission of the motion.

The remaining branches of claimant’s motion are denied as being beyond the dates ordered by this Court (see Brill v City of New York, 2 NY3d 648; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725).

Claimant now moves this Court to recuse itself for being a party to the action and vacating the order of August 31, 2005[2].

Judiciary Law §14, in relevant part, states:
A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested . . .

Claimant argues that because a CPLR Article 78 review of this Court’s initial refusal to hear the motion, which named me as the respondent, I am now a party to the action.

This Court finds no merit to claimant’s argument. I was named as the respondent in the Article 78 proceeding in an administrative capacity. A judge does not become a litigant in a matter by a party suing or threatening to sue the judge (N.Y. State Ass'n of Crim. Defense Lawyers v Kaye, 95 NY2d 556 aff’d 96 NY2d 512).

Claimant also alleges bias and prejudice by this Court. Such an allegation, even if it were true, which it is not, does not require automatic recusal, as in Judiciary Law §14. Rather, recusal is left to the discretion of the Court (People v Patrick, 183 NY 52).

This Court’s initial refusal to hear claimant’s motion was done to enforce the prior orders which set deadlines for the filing of summary judgment motions and expert disclosure (see Brill v City of New York, 2 NY3d 648; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725). The Court’s subsequent sua sponte ruling denying the relief sought by claimant was not done to spite claimant. The Court’s denial of the motion aids claimant in seeking its reversal in the Appellate Division, rather than spending time in the Supreme Court arguing the appropriateness of this Court’s refusal to accept the original motion.

This Court holds no personal bias or prejudice toward claimant in this matter. Indeed, I have never met nor even talked to either claimant or claimant’s current trial counsel. The Court is merely enforcing the deadlines it has set well in advance of trial. Counsel’s management of or failure to meet those deadlines is not a basis to disrupt the Court’s trial schedule. Nor should counsel be allowed to forum shop by creating what he describes as a “conflict”.

This Court’s involvement in this matter has been administrative and not as a party. The Court holds no bias or prejudice in favor or against either party. Claimant’s motion for the Court to recuse itself and to vacate its Order of August 31, 2005 is denied. The parties shall be contacted by Chambers and given a new trial date.


November 9, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]. The Supreme Court initially refused to consider the review of this Court claimant sought. However, after its refusal, claimant brought an action to the Appellate Division which ordered the Supreme Court to consider claimant’s proceeding.
[2].The following papers have been read and considered on claimant’s motion: Notice of Motion dated September 1, 2005 and filed September 6, 2005; Affirmation of Robert M. Ginsberg with annexed Exhibits A-C dated September 1, 2005 and filed September 6, 2005; Affirmation of John M. Shields, Esq. dated September 12, 2005 and filed September 19, 2005.