New York State Court of Claims

New York State Court of Claims

MAZZAFERRO v. STATE OF NEW YORK, #2007-018-559, Claim No. 107713, Motion No. M-72587


Synopsis


The Court has conditionally granted Defendant’s motion to strike the note of issue.

Case Information

UID:
2007-018-559
Claimant(s):
PAULINE A. MAZZAFERRO, as Executrix of the Estate of LOUIS D. MAZZAFERRO
Claimant short name:
MAZZAFERRO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107713
Motion number(s):
M-72587
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
PAUL L. PILECKAS, ESQUIRE
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 26, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this motion seeking an order striking the note of issue which was filed

by Claimant’s counsel with the Clerk of the Court on October 31, 2006. Claimant opposes the motion.

A claim was filed on May 6, 2003 and an amended claim was filed on May 9, 2003. A Verified Answer was filed on June 12, 2003. The claim alleges Defendant was negligent when it implanted a defibrillator in decedent causing damage to his heart. The claim also alleges lack of informed consent. The original Claimant was apparently quite ill after the claim and amended claim were filed, and has since died. An Order substituting the representative of the deceased’s estate as Claimant was filed on May 11, 2006.

Defendant’s counsel argues that because of decedent’s ill-health no depositions were conducted. The doctor alleged to have committed the malpractice is also no longer in the area and the parties have been unable to locate him. Given these factors, Defendant’s counsel indicates that she was under the impression that the action might be discontinued. Claimant’s counsel filed the note of issue and certificate of readiness even though the attorneys have discussed the need for additional discovery.

The Court will conditionally grant Defendant’s motion as Defendant has established that this claim is not ready for trial (see Audiovox Corp. v Benyamini, 265 AD2d 135, 138). If all necessary discovery is not completed on or before September 4, 2007, the note of issue and certificate of readiness in this action shall be stricken.



February 26, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion..........................................................................................1


Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto..........................2


Affirmation in Opposition of Paul L. Pileckas, Esquire, with exhibit

attached thereto.................................................................................3