New York State Court of Claims

New York State Court of Claims

MARKOWITZ v. THE STATE OF NEW YORK, #2007-013-028, Claim No. 105735, Motion Nos. M-73061, M-73469, M-73530, CM-73586


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-73061, M-73469, M-73530
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 29, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


On June 27, 2007, the following papers were read on motions by Claimant and Defendant for a protective order, for an order vacating the note of issue, dismissing the claim of psychiatric malpractice, compelling discovery, for sanctions, costs, etc.:

Notice of Motion (M-73061), Affirmation and Exhibits Annexed

Notice of Motion (M-73469), Affirmation and Exhibits Annexed

Defendant’s Reply Affirmation (M-73061 & M-73469)

Notice of Motion (M-73530), Affirmation and Exhibits Annexed

Notice of Cross-Motion (CM-73586), Affirmation and Exhibits Annexed

Defendant’s Reply Affirmation and Answering Affirmation (M-73530 and CM-73586)

Claimant’s Reply Affirmation

Filed Papers: Claim; Answer; Certificate of Merit

It is not necessary to review the entire procedural history of this matter, but suffice it to say, in a Memorandum and Order entered February 2, 2007, the Appellate Division, Fourth Department (37 AD3d 1106) modified an earlier order by (1) reinstating the psychiatric malpractice claims upon condition that Claimant shall serve and file a certificate of merit under CPLR 3012-a within 30 days of service of that order, and (2) reinstating the ordinary negligence claims. A spate of motions has ensued.

First, in Motion No. M-73061, Claimant, pursuant to 22 NYCRR 202.21(d), seeks to vacate his Note of Issue,[1] and to compel the Defendant to produce all outstanding discovery immediately, as well as to conduct discovery of certain non-party witnesses, including but not limited to one Michael Gorke (or Goeke), a former employee of the Defendant.

Second, in Motion No. M-73469, Defendant has moved for a protective order against any further disclosure, generally relying upon Claimant’s filing of his Note of Issue on October 2, 2003 and representations at an April 29, 2004 conference that this matter was ready for trial. Defendant opposing vacating the Note of Issue, on numerous grounds, including reference to 22 NYCRR 206.12(c), and the alleged absence of any “unusual or unanticipated circumstances.”

Third, in Motion No. M-73530, the Defendant seeks to dismiss Claimant’s psychiatric malpractice cause of action on the ground that it was not properly reinstated under the terms of the Fourth Department’s February 7, 2007 (sic - should be February 2, 2007) Order. Defendant contends that the “purported certificate of merit did not comply with CPLR §3012-a” and thus the psychiatric cause of action has not been reinstated and must be dismissed. That order was mailed on February 14, 2007 and received by Defendant’s appellate counsel on February 16, 2007 (Exhibit 1 to Motion No. M-73530). On March 8, 2007 Defendant received Claimant’s Certificate of Merit, which was filed with the Clerk on March 12, 2007. By letter dated March 14, 2007, the Defendant “rejected and returned” the Certificate of Merit on the basis that “it [did] not contain all the language required by CPLR 3012-a.” The Claimant rejoined by contending that such rejection was improper and that under CPLR 3012-a(a)(1) it did contain all the required language. The Defendant urges a deficiency in that it does not “expressly state that the attorney’s conclusion that there is a reasonable basis for the commencement of this action was based on consultation with a physician.”

The latest motion before me,[2] Cross-Motion No. CM-73586, was filed by Claimant and seeks $250.00 in costs pursuant to CPLR 8303-a; sanctions against defense counsel pursuant to 22 NYCRR 130-1.1 for frivolous motion practice; and substantively, seeks to have a proposed amended Certificate of Merit be deemed timely served nunc pro tunc.

All four motions were adjourned to one date and are decided herewith.

The latter two applications, Motion No. M-73530 and Cross-Motion No. CM-73586, are addressed first. I find that the Certificate of Merit served on March 8, 2007 and filed with the Clerk on March 12, 2007, was proper and sufficient and is not jurisdictionally defective. Although it did not contain a verbatim regurgitation of CPLR 3012-a, the purported omission of a word, while arguable, does not subvert the substantial compliance with the intent and purpose of CPLR 3012-a and the Appellate Division (37 AD3d 1106). While I would otherwise be inclined to grant that part of the cross-motion seeking to deem the proposed amended Certificate of Merit timely served nunc pro tunc, I do not believe it is necessary, because the filed Certificate of Merit is clear. Since the Defendant’s prayer for relief is arguable, albeit somewhat marginally, I decline at this time to impose sanctions or award costs.

Accordingly, Claimant’s Cross-Motion No. CM-73586 is denied in its entirety. The Defendant’s motion No. M-73530 to dismiss the cause of action for psychiatric malpractice because the Certificate of Merit failed to comply with CPLR 3012-a is similarly denied.

Next I consider Claimant’s Motion No. M-73061, seeking to compel the Defendant to produce all outstanding discovery immediately and to vacate his Note of Issue, as well as conducting discovery of certain non-party witnesses, and the Defendant’s Motion No. M-73469 for a protective order against any further disclosure, and opposing vacating the Note of Issue.

The Note of Issue and Certificate of Readiness filed on October 2, 2003 is hereby vacated. The Fourth Department’s unequivocal ruling herein, inter alia, reinstates a claim sounding in psychiatric malpractice, which had not been specified at the time of the filing of the now-vacated Note of Issue (see Exhibit R to Motion No. M-73061), as well as reinstating the cause of action sounding in negligence. Inasmuch as both of the reinstated causes of action arise from the same set of occurrences, and the CPLR 3012-a Certificate of Merit as to the psychiatric malpractice was not filed until March 12, 2007, it is axiomatic that the Note of Issue and Certificate of Readiness should be vacated, and that part of Motion No. M-73061 is granted.

In light of the direction from the Fourth Department in reinstating both the psychiatric malpractice and ordinary negligence claims, I am disinclined to foreclose appropriate discovery, irrespective of the ongoing disputes about the previously filed Note of Issue and other representations of trial readiness.

Claimant seeks to compel Defendant to produce all outstanding discovery and conduct discovery of certain non-party witnesses, including but not limited to Michael Gorke (or, per Defendant, Michael Goeke). Claimant alludes to other discovery sought in his affirmation in support of Motion No. M-73061: (1) Paragraph 8, concerning the potential involvement from other inmates in causing the enucleation; (2) the Paragraph 9 reference to “Michael Gorke as well [sic] K. McDonald and others [who] had significant contact with Mr. Markowitz before, during, and after the alleged occurrence;” (3) Paragraph 10, referencing a videotape and/or videotapes of Claimant before, during and after this incident; and (4) Paragraph 13, seeking to be provided with Mr. Gorke’s last known home address. I note here that Claimant purportedly annexed as Exhibit DD a copy of a judicial subpoena that supposedly was returned by his process server because Mr. Gorke is “not at the address/facility as provided by counsel.” Exhibit DD is a letter dated May 11, 2000 from the Superintendent of Attica Correctional Facility to one Sara Kerr, Esq., of the Legal Aid Society in New York City. The Defendant notes that in a March 14, 2003 letter from Claimant’s then counsel (see Exhibit 3 to Defendant’s affirmation in support of Motion No. M-73469), that Mr. Alegria notes his receipt of the last known address for Mr. Gorke/Goeke. Were the parties more civil to one another, I might have suggested that Defendant contact Mr. Gorke/Goeke to see if he would be willing to be contacted directly by Claimant’s counsel. Without knowing what address was used for the missing judicial subpoena, ostensibly attached as Exhibit DD, and until I am presented with legal authority permitting the disclosure of the last known home address of a former employee of the Defendant, that part of Claimant’s motion is denied.

Furthermore, I decline to compel the production of K. McDonald and others who had significant contact with Mr. Markowitz before, during or after the alleged occurrence at this time. The Defendant’s motion for a protective order generally opposes any additional disclosure because of the filing of the Note of Issue, and does not specifically seek a protective order as to further depositions that may be sought. Nevertheless, as to K. McDonald, nothing before me indicates that Claimant has sought that deposition previously, or that the Defendant has refused to produce K. McDonald. I also decline to compel the production of others who are unnamed.

With respect to the allegedly outstanding documents, presumably those referenced in Claimant’s December 4, 2004 letter to Defendant (Exhibit 9 to Motion No. M- 73469), Defendant seeks a protective order. Since the Note of Issue is now vacated, I find that items 1 through 3 of that request relating to an incident of March 4, 2000 are sufficiently contemporaneous to the enucleation on March 13, 2000 to permit their pretrial disclosure. With respect to his request in items 4 and 5 for the identity and current address/location of the inmate and the documents from an investigation mentioned in the April 12, 2000 letter from Deputy Commissioner and Counsel Annucci (Exhibit G to Motion No. M-73061), I will deny such request with respect to the inmate, at this time, as the relevance thereof may prove illusory, but I will direct production of the requested documents of the investigation referenced in Mr. Annucci’s letter.

As to the Claimant’s request in Paragraph 10 of the affirmation in support of Motion No. M-73061 for a videotape and/or videotapes of Claimant before, during and after this incident, this apparently was never previously demanded by Claimant’s counsel herein. However, the Defendant notes a copy of a videotape was provided to Ms. Kerr of the Legal Aid Society on Claimant’s behalf in April 2000 (Exhibit CC to Motion No. M-73061). To the extent that Claimant provides no parameters or time frame for the periods before and after the incident, I will direct that any videotapes two weeks before and two weeks after the incident be produced, if they still exist, and acknowledging that as of April 14, 2000, a March 6, 2000 videotape had already been recycled (Exhibit CC).

The motions and cross-motion are granted and denied to the extents noted above.

A conference to address a new scheduling order, to set deadlines for compliance with outstanding discovery, including depositions and the filing of a Note of Issue, is scheduled for September 20, 2007 at 10:00 a.m.

The Clerk is directed to serve this decision and order on the parties.

August 29, 2007
Rochester, New York
Judge of the Court of Claims

  1. [1]For ease of reference, the term Note of Issue includes the Certificate of Readiness.
  2. [2]I have no doubt that, regretfully, the contentiousness of the parties will generate appeals and continuing motion practice long after the instant matters are decided.