New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2006-028-606, Claim No. 105260, Motion No. M-71892


Inmate Claimant’s motion for a trial preference (CPLR 3403) is denied. All of the statutory exceptions are inapplicable, and Claimant’s own actions – in bringing multiple meritless motions – are responsible for any delay in proceeding his case to trial.

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):

Claimant’s attorney:
Defendant’s attorney:
BY: Stephen J. Maher, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for a trial preference:

1. Notice of Motion and Supporting Affidavit of Chester Davidson, pro se, with annexed Exhibit;

2. Affirmation in Opposition of Stephen J. Maher, AAG, with annexed Exhibit; and

3. Reply Affidavit of Chester Davidson, pro se

Filed papers: Claim; Answer

This action arose in the spring of 2001 when, it is alleged, Claimant was given incorrect medication by the medical department of Greene Correctional Facility. He had been taking the medication Atenolol for some time and on March 7, 2001, he obtained a refill prescription. Within three days, he began to experience nausea and other negative symptoms, and on March 16, while inspecting the medication bottle, he noticed that underneath the label with his name and identifying information, there was another label, listing a different inmate’s name and information. The medication turned out to be Metoprolol, something that Claimant says is “totally different” from Atenolol and not what had been prescribed for him.

This claim has been the subject of extensive motion practice and, in fact, has given rise to a separate claim, Claim No. 106233 (Davidson v State of New York, 3 AD3d 623 [3d Dept 2004][alleging improper release of medical records]). In connection with the instant claim, Claimant has brought four discovery motions (UID #2002-028-026, Claim No. 105260, Motion Nos. M-64770, M-64892 [Ct Cl 2002], Sise, P.J.; UID #2002-028-074, Claim No. 105260, Motion Nos. M-65119, M-65265, M-65439 [Ct Cl 2002], Sise, P.J.; UID #2003-028-521, Claim No. 105260, Motion No. M-66166 [Ct Cl 2003], Sise, P.J.; UID #2003-028-538, Claim No. 105260, Motion No. M-66322 [Ct Cl 2003], Sise, P.J.). With the exception of a single discovery demand which was determined to be appropriate, all of the relief requested in these motions was denied. He also instituted one unsuccessful motion for summary judgment (UID #2004-028-545, Claim No. 105260, Motion No. M-67232 [Ct Cl 2004], Sise, P.J.), in connection with which he filed an appeal that was ultimately withdrawn in February of this year (Maher affirmation, Exhibit A).

Claimant now moves for a trial preference pursuant to CPLR 3403(a), asserting that “stagnation of due course will be detrimental and irreparable to this litigation” (Notice of Motion). CPLR 3403 (a) provides that civil cases are to be tried in the order that the notes of issue have been filed, except that preference shall be given to the following: 1) an action against the State or other political subdivisions of the State, 2) an action where preference is provided by statute, 3) an action in which the interests of justice will be served by an early trial, 4) an action brought by a party over the age of 70 years; 5) an action to recover for medical, dental, or podiatric malpractice, or 6) an action brought by a party who is terminally ill and who alleges that the illness was brought about by the conduct of the Defendant.

Inasmuch as all actions in the Court of Claims are brought against the State or some agency or subdivision of the State, the first exception cannot serve to give any litigant a trial preference in this Court. In addition, there is no statutory preference relevant to this action; Claimant does not assert that he is over 70 years of age or terminally ill as the result of alleged malfeasance on the part of Defendant; and the instant claim is based on allegations of negligence in carrying out medical instructions, not malpractice in the provision of treatment. Consequently, the only argument available to Claimant is that he is entitled to a preference “in the interest of justice.” Although he references this ground in his submissions (Davidson Affidavit, ¶ 3; Reply Affidavit, ¶ 3), Claimant fails to present any coherent argument[1] that interests of justice require his lawsuit to be dealt with in any fashion more favorably than those actions commenced by other prison inmates.[2] Indeed, a strong case could be made that as a result of his numerous motions and the judicial time necessary to deal with them, Claimant himself has prejudiced all other litigants who are waiting for trial on their claims.

Claimant’s motion is denied.

December 27, 2006
Albany, New York

Judge of the Court of Claims

[1]. In his affidavit in support of the motion, Claimant references a routine inquiry from the Court and interprets it, incorrectly, as an attempt to discontinue his action (Davidson Affidavit, ¶ 5, Exhibit A). In his reply affidavit, Claimant references a letter that is not attached to his moving papers. The letter, dated March 20, 2006, which is in the Court’s file, points out that the passage of time has made certain witnesses unavailable. This phenomenon is in no way unique to Claimant’s lawsuit.
[2]. As noted by Defendant’s counsel, prisoner pro se claims are, in general, tried in the order in which the claim was filed. Where, as here, there is extensive motion practice and/or appeals in connection with a particular action, it may not be reached as quickly as others filed within the same time period.