New York State Court of Claims

New York State Court of Claims

L.M. BUSINESS v. THE STATE OF NEW YORK, #2007-009-018, Claim No. 107559, Motion No. M-72969


Synopsis


Defendant’s motion for an order striking claimant’s note of issue and certificate or readiness was granted.

Case Information

UID:
2007-009-018
Claimant(s):
L.M. Business Associates, Inc., Northeast Staffing Group, Inc., Triple County Agency, Inc., Executive Resources, Inc., Pro To Call, Inc. and 1649 Monroe Associates, LLC
Claimant short name:
L.M. BUSINESS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107559
Motion number(s):
M-72969
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
FINUCANE & HARTZELL, LLP
BY: Leo G. Finucane, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 27, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order striking the note of issue and certificate of readiness which was filed with the Clerk of the Court on January 16, 2007.

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


Attorney’s Affirmation (in opposition) 3

This claim was filed with the Clerk of the Court of Claims on April 3, 2003. In a Decision and Order dated December 22, 2003, this Court denied defendant’s motion seeking an order dismissing the claim for failure to state a cause of action, and granted claimants’ cross-motion seeking permission to serve and file an amended claim.

Thereafter, the Court issued a scheduling order, based upon a stipulation of counsel, directing that all discovery be completed by August 19, 2005, and further directed that a note of issue and certificate of readiness be filed by September 16, 2005.

The dates set forth in this stipulation and order were subsequently extended by this Court on numerous occasions. With the current scheduling order of September 18, 2006 directing that discovery be completed by December 15, 2006 and a note of issue and certificate of readiness be served and filed by January 15, 2007. In mid-December 2006, defendant’s counsel advised the Court that he would be seeking additional time to complete discovery (depositions and document discovery), but that he was unsure whether claimants’ attorney would be willing to consent to any further extensions. Thereafter, claimants duly served and filed a note of issue and certificate of readiness in compliance with the Court’s scheduling order, and defendant timely filed this motion seeking an order striking said note of issue.

Turning to the merits of this motion, the State contends that the depositions of certain individuals who maintained business relationships with the various claimants herein remain to be conducted. Additionally, the State wishes to review certain financial records of the various claimants.

Apparently, as set forth in the motion papers, defendant’s attorney had informally requested claimants’ consent to an extension of the existing scheduling order, but claimants, due to the age of this claim, were unwilling to consent to any further extensions. While the Court is similarly concerned with the age of this claim, and while the delay in completing discovery can in no way be attributable to claimants, the Court nevertheless believes that the remaining depositions and discovery sought by defendant may provide relevant and important information in the defense of this claim. Reluctantly, therefore, the Court will provide the State with one final and limited opportunity to complete depositions and discovery.[1]

Accordingly, it is

ORDERED, that Motion No. M-72969 is hereby GRANTED; and the Clerk of the Court is directed to strike the note of issue and certificate of readiness previously filed in this claim; and it is further

ORDERED, that all discovery and depositions shall be completed on or before September 10, 2007, and a note of issue and certificate of readiness shall be served and filed by October 10, 2007. No further extensions shall be granted.


June 27, 2007
Syracuse, New York

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




[1].The Court is well aware that a companion action arising from the same events upon which this claim is based is currently pending in the Federal District Court for the Western District of New York, and that discovery in that action has mirrored the discovery in this claim. According to the affirmation of claimants’ attorney, at this time there is no discovery pending in the federal action.