New York State Court of Claims

New York State Court of Claims

FAMILY SERVICES v. THE STATE OF NEW YORK, #2007-030-510, Claim No. 110835, Motion No. M-72626


Synopsis


Claimant’s motion is granted to the extent that with regard to Claim number 110835, the time within which to file a Note of Issue and Certificate of Readiness is extended so that matters proceed by the same time table established with regard to Claim number 110834. Claim Number 110835 names the State of New York; Claim Number 110834 names the New York State Thruway Authority [NYSTA]. The claims arise from an accident that occurred on February 22, 2005 during a construction project on property “owned either by the State of New York or the New York State Thruway Authority”, when injured party was struck in the head and suffered severe brain damage. Claimants were appointed Temporary Guardians in or about July, 2005. Related litigation was commenced at some unspecified time in Supreme Court. No opposition to the present motion, thus the Court is constrained to grant the relief requested, with the proviso that the date directed is final, and no extension shall be granted. Counsel are reminded that all papers that are required to be served upon a party are also required to be filed with the Clerk of the Court pursuant to Court rule. see 22 NYCRR §206.5(c).

Case Information

UID:
2007-030-510
Claimant(s):
FAMILY SERVICES SOCIETY OF YONKERS as TEMPORARY GUARDIAN OF THE PROPERTY OF GEORGE MICHAEL PETRIE
Claimant short name:
FAMILY SERVICES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110835
Motion number(s):
M-72626
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
CLARK, GAGLIARDI & MILLER, P.C.BY: LAWRENCE T. D’ALOISE, JR., ESQ.
Defendant’s attorney:
WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP
Third-party defendant’s attorney:

Signature date:
February 5, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Claimant’s motion to extend the time to file a Note of Issue and Certificate of Readiness with regard to Claim Number 110835 against the State of New York, so that matters proceed by the same timetable established with regard to the related Claim Number 110834 against the New York State Thruway Authority [NYSTA]:
1,2 Notice of Motion to Extend Time to file Note of Issue and Statement of Readiness; Affidavit by Lawrence T. D’Aloise, Jr., Esq., Clark, Gagliardi & Miller, P.C., attorneys for Claimant, and attached exhibits

3-6 Filed Papers: Claim No. 110834, Answer; Claim No. 110835, Answer

No Opposition Filed


In the Preliminary Conference Order [PCO] originally agreed to with regard to Claim Number 110835 against the State of New York, a Note of Issue and Certificate of Readiness were to have been filed by October 2, 2006. [Affidavit by Lawrence T. D’Aloise, Jr., Exhibit 3]. The attorneys for the Claimant now seek an Order extending such time to August 15, 2007, essentially because that date was directed in the PCO entered and agreed to with regard to the separate Claim against the NYSTA: Claim Number 110834. [Ibid. Exhibit 4].

The claims arise from an accident that occurred on February 22, 2005 during a construction project on property “owned [either] by the State of New York and/or the New York State Thruway Authority”, when George Petrie was struck in the head and suffered severe brain damage. Claimant was appointed Temporary Guardian of the property of Mr. Petrie by Order of the Supreme Court, Westchester County in or about July 2005. Related litigation was commenced at some unspecified time in Supreme Court against Mr. Petrie’s employer, the general contractor, other entities involved in the construction project, as well as the air compressor manufacturer and lessors of such equipment, among others. As explained by Claimant’s counsel, although both Claims here were commenced at approximately the same time, issue was not joined with regard to the claim against the NYSTA because the Answer was not timely served and filed, and there was motion practice to allow late service of the Answer. Once issue was joined in Claim number 110834, the PCO was agreed to and “so ordered” by this Court.

Counsel indicates that there has “been some document discovery in both actions and a deposition of a State of New York witness has been completed. There is further document discovery necessary in both cases and a deposition of one or more New York State Thruway Authority witnesses must be taken.” [Ibid. Page 3]. This description of what discovery has been accomplished is somewhat less than satisfying. One deposition of a State witness in an almost two (2) year period is not proceeding apace.

Nonetheless, there has been no opposition to the present motion, thus the Court is constrained to grant the relief requested, with the proviso that the date directed is final, and no extension shall be granted. Counsel are reminded that all papers that are required to be served upon a party - such as bills of particulars, demands and responses - are also required to be filed with the Clerk of the Court pursuant to Court rule. See 22 NYCRR §206.5(c).

Accordingly, Claimant’s motion [M-72626] is hereby granted to the extent that with regard to Claim number 110835, the PCO entered therein is modified to provide that a Note of Issue and Certificate of Readiness shall be filed on or before August 15, 2007.




February 5, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims