New York State Court of Claims

New York State Court of Claims

BYUN v. THE STATE OF NEW YORK, #2006-030-535, Claim No. 109119, Motion No. M-71239


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:
Third-party defendant’s attorney:

Signature date:
May 2, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 10 were read and considered on Claimants’ motion to consolidate and/or try jointly the within Claim with Claim number 107827:
1,2 Notice of Motion, Affirmation in Support by Clifford J. Stern, Attorney for Claimants and attached exhibits

  1. Affirmation in Opposition by Gail Pierce-Siponen, Assistant Attorney General
  1. Reply Affirmation by Clifford J. Stern, Attorney for Claimants and attached exhibits
5-10 Filed papers: Claim Number 109119, Answer, Bill of Particulars, and Claim Number 107827, Answer, Bill of Particulars

Sarah Byun and Young Byun seek recovery for personal injuries sustained in a motor vehicle accident occurring on October 6, 2002 at approximately 5:20 a.m. on the westbound section of Northern Boulevard near 126th Place in the County of Queens. Claimant[1] was a passenger in a van driven by Myung G. Shim, that collided with a vehicle driven by Danish Malhotra. Claimant alleges in Claim Number 109119 - hereinafter referred to as Action No. 1 - that the force of the collision caused the van to strike an unguarded cement pole positioned close to the roadway. Defendant’s liability is premised upon the alleged negligence on the part of its agents in the ownership, operation, maintenance, control, design, construction and repair of the aforementioned roadway and traffic plan thereon. After being warned that the Claim would be dismissed if prosecution was not resumed, a Note of Issue and Certificate of Readiness was filed on January 31, 2006, indicating all discovery was complete.

The other claim commenced in this Court in connection with this accident was filed by Myung G. Shim and Kyung Ho Shim, and assigned Claim Number 107827. It is hereinafter referred to as Action No. 2. The same description of the accident is set forth in the claim, and the State’s negligence is premised on similar grounds. A Note of Issue and Certificate of Readiness was filed on March 3, 2005, indicating all discovery was complete. Thereafter, it appears that the parties entered into a Stipulation of Conditional Dismissal, premised upon the likelihood that the claim would be rendered moot by a Supreme Court action then pending against other entities and/or parties.

On October 11, 2005 Action No. 2 was reactivated in the manner required by the Stipulation of Conditional Dismissal. Correspondence in the file in Action No. 2 would seem to indicate that one of the items of discovery resolved prior to scheduling the trial was a deposition of the Claimant Sarah Byun. The matter is scheduled for a three (3) day trial on the issue of liability commencing Tuesday, September 26, 2006 at 10:30 a.m.

Court of Claims Act §9(5) provides in pertinent part that the Court of Claims shall have jurisdiction “ . . . to order two or more claims growing out of the same set of facts to be tried or heard together, with or without consolidation, whenever it can be done without prejudice to a substantial right.” The Civil Practice Law and Rules provision concerning consolidation provides “. . . when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” See Civil Practice Law and Rules §602(a). The decision on whether claims should be heard together is clearly within a trial court’s discretion.

The Court agrees with Defendant that consolidation is not appropriate because there is not a complete identity of parties in both claims, although there are most certainly common questions of law and fact when the Claimant in one claim is the driver, and the Claimant in another claim is a passenger in the same vehicle, particularly given the very similar allegations of negligence against the State in the respective claims.

With regard to holding a joint trial, the Court is persuaded that there is no prejudice to the State and to Claimant Shim, “by the untimely request and the disparate litigation status of the claims.” [Affirmation in Opposition by Gail Pierce-Siponen, Assistant Attorney General, ¶4]. While certainly a Note of Issue was filed a year earlier in Action No. 2, the matter was off the calendar for an extended period of time based upon the conditional dismissal order, and only revived at the close of 2005. The Note of Issue here was filed shortly thereafter in January 2006.

Although the Court would have preferred to have heard the position directly from Counsel for Claimant Shim, Claimant here indicates in a Reply Affirmation “we have spoken with counsel for Claimant Shim and they do not object to this motion whatsoever, which accounts for the fact that they have served no opposition.” [Reply Affirmation, ¶3].

Defendant argues that the liability issues of the Shim Claim have been narrowed to consideration of the requirement for barrier placement applicable to arterial roadways, and all witnesses have been identified, including expert witnesses, whereas discovery in the Byun Claim was limited to the claimant’s deposition. [Affirmation in Opposition, ¶¶5, 6]. Defendant also appears to argue that Claimant in the Byun Claim is remiss in not seeking further disclosure from the State. Other than expert disclosure by Byun and Defendant, Defendant does not indicate what, if any, outstanding demands there are. As noted, the Note of Issue and Certificate of Readiness has been filed with regard to the within Claim attesting to completion of discovery.

If anything, it would save time, money, and prevent the waste of judicial resources to proceed with the joint trial of the claims, regardless of what would seem to be the Claimant’s attempt “to ‘jump the line’ in such a blatant manner”, as noted with some asperity by Defendant. [Affirmation in Opposition, ¶17].

Accordingly, Claimant Byun’s motion [M-71239] is hereby granted to the extent that the two claims will be tried jointly based upon compliance with the following:

(1) Claimant is directed to provide expert disclosure[2] to Defendant for the liability portion in Claim Number 109119 within fifteen (15) days of the filing date of this Decision and Order; and Defendant is directed to provide its expert disclosure within fifteen (15) days of the service upon it of Claimant’s disclosure;

(2) Trial of both Claims shall proceed as scheduled on September 26, 2006.

May 2, 2006
White Plains, New York

Judge of the Court of Claims

[1]. References to Claimant are to Sarah Byun, since the claim of Young M. Byun is derivative only.
[2]. Counsel need not be reminded that a copy of same should be filed with the clerk. 22 NYCRR §206.5(c).