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;
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with which he filed an appeal that was ultimately withdrawn in February of this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
that interests of justice require his
lawsuit to be dealt with in any fashion more favorably than those actions
commenced by other prison inmates.
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.