New York State Court of Claims

New York State Court of Claims

CHIARELLO v. STATE OF NEW YORK, #2007-037-506, Claim No. 106662


Synopsis



Case Information

UID:
2007-037-506
Claimant(s):
JOHN JOSEPH CHIARELLO
Claimant short name:
CHIARELLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106662
Motion number(s):

Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
John Joseph Chiarello, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. Miller, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 3, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 denied.[1] 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 [1989], lv dismissed 74 NY2d 893 [1989]). 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 [1983]; State of New York v Massapequa Auto Salvage, 267 AD2d 679 [1999], lv denied 95 NY2d 753 [2000]).

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 [1993], lv dismissed and denied 82 NY2d 736 [1993]).

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.


January 3, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims



[1].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, Ct Cl, 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.