Claimant, an inmate proceeding pro se, seeks compensation for injuries
allegedly sustained as a result of the negligence of medical personnel during
surgery to repair a hernia while he was in the custody of the New York State
Department of Correctional Services (DOCS) at Gowanda Correctional Facility.
Trial of the claim, which was filed with the Court on September 20, 2002, was
scheduled to be held at Wende Correctional Facility on September 6, 2007.
Claimant was notified of the trial date by correspondence from the Court
directed to him at Collins Correctional Facility under date of May 23, 2007. On
or about June 17, 2007, Claimant submitted a written request to the Court
seeking permission to proceed as a poor person and for the appointment of
counsel. By a decision and order dated July 26, 2007 and filed July 30, 2007,
Claimant’s requests were denied based upon the fact that his prior
applications for similar relief were also
Claimant appeared at the time of trial
again requesting the assistance of counsel and seeking an adjournment stating
that he did not intend to proceed without the assistance of counsel and an
expert medical witness.
It is well-settled that “[a]pplications for adjournments are addressed to
the discretion of the trial court.” (Borak v Karwowski, 151 AD2d
454, 455 , lv dismissed 74 NY2d 893 ). In exercising its
discretion the Court undertakes a balanced consideration of all relevant factors
including, but not limited to, whether a claimant possesses a meritorious cause
of action; prejudice or the lack thereof resulting from an adjournment; the
intent or lack of intent to abandon the action; and whether the need for the
adjournment could have been obviated with the exercise of due diligence
(Wilson v Wilson, 97 AD2d 897 ; State of New York v Massapequa
Auto Salvage, 267 AD2d 679 , lv denied 95 NY2d 753
Assuming for the purposes of argument that this Claim is meritorious, the Court
finds that it is Claimant’s own lack of due diligence in securing the
assistance of counsel or an expert medical witness that caused the need for a
last minute request for an adjournment. In the five years this Claim has been
pending, Claimant has made four requests for the appointment of counsel all of
which were denied. It does not appear that Claimant has done anything further
relative to the prosecution of this matter over that time period.
Counsel for Defendant, Assistant Attorney General Gregory P. Miller, informed
the Court that the State was ready to proceed to trial and orally moved to
dismiss the Claim for Claimant’s failure to proceed with the trial.
Claimant’s refusal to proceed with the trial constitutes a failure to
prosecute and, after reviewing the abovementioned considerations, the Court will
exercise its discretion and grant Defendant’s motion to dismiss (see
Shabazz v State of New York, 191 AD2d 832 , lv dismissed and
denied 82 NY2d 736 ).
Accordingly, Claim Number 106662 is dismissed in its entirety pursuant to Court
of Claims Act §19 (3) and 22 NYCRR § 206.15.
LET JUDGMENT BE ENTERED ACCORDINGLY.
.See John Joseph Chiarello, 82-A-5541 v
State of New York
, Ct Cl, July 30, 2007, Moriarty, J., Claim No. 106662,
Motion No. M-73623 [UID No. 2007-037-030]; see also John Joseph Chiarello v
State of New York,
Ct Cl, December 30, 2002, Minarik, J., Claim No. 106662,
Motion No. M-65944; John Joseph Chiarello v State of New York,
September 13, 2004, Minarik, J., Claim No. 106662, Motion No. M-68522 and
John Joseph Chiarello v State of New York,
Ct Cl, April 22, 2005,
Minarik, J., Claim No. 106662, Motion No. M-69645.