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
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
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
(1) Claimant is directed to provide expert
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
(2) Trial of both Claims shall proceed as scheduled on September 26,