New York State Court of Claims

New York State Court of Claims

ROZENFINE v. THE STATE OF NEW YORK, #2007-009-040, Claim No. 112680, Motion No. M-73908


Synopsis


Defendant’s motion to strike the notice of issue and certificate of readiness filed by this pro se claimant, was granted.

Case Information

UID:
2007-009-040
Claimant(s):
VICTOR ROZENFINE
Claimant short name:
ROZENFINE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112680
Motion number(s):
M-73908
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
VICTOR ROZENFINE, Pro Se
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:
December 10, 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 has been filed in this claim.

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


Affidavit in Opposition, with Attachments 3

In his filed claim, claimant alleges that construction work by the State Department of Transportation caused damage to his property, making it virtually uninhabitable.

Following joinder of issue, a “Stipulation and Order”, dated May 22, 2007, was signed by the parties and approved by the Court, directing that all disclosure be completed by November 7, 2008, with a note of issue to be served and filed on or before December 5, 2008 (see Exhibit E to Items 1,2).

After engaging in a limited amount of discovery, claimant, a pro se litigant, by letter dated August 1, 2007 (see Exhibit F to Items 1,2)[1] advised defendant’s attorney that he had decided to “issue the certificate of readiness for trial.” A note of issue (without a certificate of readiness) was filed with the Clerk of the Court of Claims on August 6, 2007, although defendant’s attorney avers that this note of issue was not served upon the Attorney General. Nevertheless, defendant’s attorney has obtained a copy of the note of issue and immediately brought this application requesting that the Court strike the note of issue.

In his affirmation in support of this motion, defendant’s attorney affirms that no depositions have yet taken place with regard to this claim, and as is often the case, additional discovery may be necessary once depositions have been completed.

Since defendant has timely brought this motion, and has established that this claim is not ready for trial, the Court hereby determines that the note of issue must be stricken (see § 206.12[d] of the Uniform Rules for the Court of Claims).

In his opposition to this motion, claimant has expressed his frustration with the actions taken by State representatives with regard to his claim and has taken issue with statements made by defendant’s attorney in his affirmation in support of this motion. While the Court is certainly sympathetic to claimant’s plight, the defendant nevertheless has the right to avail itself to those pre-trial discovery devices that its attorney deems appropriate.

By this Decision and Order, the Court is taking no position whatsoever with regard to the merits of this claim, but rather has only determined that this claim is not ready for trial and that claimant’s note of issue must therefore be stricken.

Therefore, it is

ORDERED, that Motion No. M-73908 is hereby GRANTED; and it is further

ORDERED, that the note of issue previously filed in this claim is hereby stricken.


December 10, 2007
Syracuse, New York

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




[1]. This letter is dated August 1, 2006, which the Court assumes to be a typographical error, with the correct date being August 1, 2007.