New York State Court of Claims

New York State Court of Claims

PRYCE v. THE STATE OF NEW YORK, #2007-009-003, Claim No. 109542, Motion No. M-72346


Synopsis


Defendant’s motion seeking an order compelling claimant to appear for an independent medical examination was granted.

Case Information

UID:
2007-009-003
Claimant(s):
NEVILLE PRYCE
Claimant short name:
PRYCE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109542
Motion number(s):
M-72346
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
WALLACE & ASSOCIATES, P.C.
BY: Larry Wallace, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 6, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order compelling claimant to submit to an independent medical examination.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2

In his claim, claimant seeks damages based upon allegations of medical malpractice pertaining to treatment that he received for his vision at a time when he was incarcerated at Cape Vincent Correctional Facility. Based upon these allegations, there is no question that defendant has the right to require claimant to submit to an independent medical examination to assist the defendant in preparing an adequate defense to this claim. (See, Simmons v State of New York, Ct Cl, December 19, 2000 [Claim No. 94484], Bell, J., UID No. 2000-007-076)[1].

As indicated in a prior Decision and Order[2] pertaining to this claim, however, claimant was deported in November, 2005, and, to the best of this Court’s knowledge, he has been denied permission to re-enter the United States. Based on this information, and in addition to its request for an order to compel claimant to submit to an independent medical examination, defendant also seeks an order of summary judgment dismissing this claim.

Although no papers were submitted in opposition to this motion, claimant’s attorney did contact this Court prior to the original return date, and requested an adjournment (which was granted) on the basis that claimant was attempting to secure the necessary approval to allow him to re-enter the country and proceed with the prosecution of this claim. The Court, however, has not received any further notification from claimant’s counsel as to whether claimant has been successful in obtaining such approval.

Although defendant’s attorney infers that claimant has not received permission to return to this country, the Court will provide claimant with one final opportunity to lawfully return to the United States and appear for an independent medical examination.

Accordingly, it is therefore

ORDERED, that defendant’s motion seeking an order compelling claimant to appear for an independent medical examination is hereby GRANTED; and it is further

ORDERED, that claimant shall notify defendant within 45 days from the filing date of this Decision and Order, that he is available and willing to submit to such independent medical examination; and it is further

ORDERED, should claimant fail to return to this country and/or notify defendant’s attorney of his availability within such 45 day period, the Court will then entertain a motion to dismiss this claim.


March 6, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims



[1]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.
[2].See Decision and Order, Pryce v State of New York, Ct Cl, August 8, 2006, Midey, J., Claim No. 109542, Motion No. M-71505, (UID #2006-009-041).