New York State Court of Claims

New York State Court of Claims

DUSKIN v. THE STATE OF NEW YORK, #2006-033-176, Claim No. 109916, Motion No. M-70972


Synopsis



Case Information

UID:
2006-033-176
Claimant(s):
KATHERINE M. DUSKIN
Claimant short name:
DUSKIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109916
Motion number(s):
M-70972
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Joachim, Frommer, Cerrato & Levine, LLPBy: Louis J. Cerrato, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Victor J. D’Angelo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 15, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Katherine M. Duskin (hereinafter “claimant”) for the alleged negligence of the State of New York (hereinafter “State”) on September 24, 2003, at the State University of New York Hospital at Stony Brook, Stony Brook, New York. Claimant alleges that on the incident date she was caused to slip and fall and sustain personal injuries due to defendant’s negligence.


Defendant moves this Court for an order to compel claimant to appear for an independent medical examination pursuant to CPLR 3121[1]. Defendant is seeking an independent medical examination by a doctor located in Franklin Square, New York which is located in the County of Nassau. In opposition to the motion, claimant argues the examination should take place in the county in which she resides and the case is venued. Claimant resides in the County of Suffolk.

Claimant’s counsel is located in Garden City, New York in the County of Nassau. Claimant’s counsel is located only 10 to 15 minutes from the doctor’s office that defendant has chosen.[2]

The Court of Claims is divided differently than the Supreme Court. The Court of Claims is divided into eight districts. Suffolk County is part of the New York District, which also includes the counties of: Nassau, Bronx, Queens, Kings, New York and Richmond (Uniform Rules for the Court of Claims, 22 NYCRR §206.4). Therefore, the place where this case is venued is the New York District. Claimant’s argument that defendant’s doctor is outside of the county where the case is venued must fail. Similarly, claimant’s arguments pursuant to CPLR 3110 (the place of deposition being claimant’s county of residence or where the case is venued) also fails. Claimant and the doctor are both within the New York District.

Based upon the foregoing defendant’s motion is granted. Claimant is directed to appear at the doctor’s office of defendant’s choosing for an independent medical examination pursuant to CPLR 3121 at her own expense. Claimant is directed to appear for the examination within thirty (30) days of the filing date of this Decision and Order. In the event claimant fails to appear for the examination, claimant is precluded from offering evidence as to damages.



March 15, 2006
Hauppauge, New York

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




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated November 22, 2005 and filed November 23, 2005; Affirmation of Victor J. D’Angelo, Esq. with annexed Exhibits A-G dated November 22, 2005 and filed November 23, 2005; Affirmation in Opposition of Louis J. Cerrato, Esq. with annexed Exhibit 1 dated December 5, 2005 and filed December 8, 2005; Affidavit of Katherine M. Duskin sworn to December 2, 2005 and filed December 8, 2005.
[2].This estimate is based upon a search of driving directions at mapquest.com.