New York State Court of Claims

New York State Court of Claims

BLACKWELL v. STATE OF NEW YORK, #2007-039-011, Claim No. 101994, Motion No. M-72957


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):
Cross-motion number(s):

Claimant’s attorney:
James Blackwell, pro se and Marjorie S. Vogel, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Dennis M. Acton Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 4, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim for wrongful confinement and medical malpractice was commenced on February 22, 2000. By decision and order dated July 31, 2000, the Court (NeMoyer, J.) granted defendant’s summary judgment motion to the extent that the cause of action for wrongful confinement was dismissed. The note of issue and certificate of readiness was filed during September 2006 and, a few months thereafter, claimant, James Blackwell, was sentenced to a term of incarceration of 1½ to 3 years which he is presently serving. Pursuant to the Court’s Daily Report dated November 14, 2006 (Hard, J.), trial is scheduled to commence on June 5, 2007. Claimant now seeks an order from the Court striking the note of issue and certificate of readiness and granting him an extension of time to prepare for trial based on his incarceration. Defendant opposes the motion and argues, among other things, that claimant has received several extensions in the past, and that his incarceration is self-imposed and does not inhibit him from litigating this claim. The Court has considered the parties’ arguments and finds that striking the note of issue is not an appropriate remedy, but that good cause exists to adjourn the trial date. 22 NYCRR 206.12 [d] provides, in relevant part, that
“[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. After such period, no such motion shall be allowed except for good cause shown.”

As explained by the Court in Basetti v Nour (287 AD2d 126, 134 [2nd Dept, 2001]), “[i]f the court chooses to vacate the note of issue, the certificate of readiness must be incorrect in some material way. The basis for vacatur cannot be that the plaintiff failed to appear or for some other reason is unable to proceed” (see also Marks v Morrison, 275 AD2d 1027, 1028 [4th Dept, 2000]; Casolaro v New York Central Mutual Fire Ins. Co., 259 AD2d 650, 651 [2nd Dept, 1999]). Here, claimant does not allege that the note of issue is incorrect in any way or that “unusual and unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness which require[s] additional pretrial proceedings to prevent substantial prejudice” (Casolaro v New York Central Mutual Fire Ins. Co., supra at 651; see 22 NYCRR 206.12 [c]). Accordingly, claimant is not entitled to relief pursuant to 22 NYCRR 206.12 [d] of the Uniform Rules for the Court of Claims, and this aspect of his motion must be denied.

Notwithstanding the foregoing, the Court finds that it would be an appropriate exercise of its discretion to adjourn the trial to permit claimant an opportunity to prosecute his claim at a time when he is no longer incarcerated. It is well settled that “the granting of an adjournment is a matter resting in the sound discretion of the trial court” (Ortolani v Town of Hempstead, 256 AD2d 451, 452 [2nd Dept, 1998]). The Court recognizes, as argued by defendant, that claimant’s incarceration is self-imposed. Nonetheless, a party’s incarceration is a factor that courts have considered in determining whether to grant an adjournment or place a matter on inactive status (see LaHendro v Nadeau, 281 AD2d 717, 718 [3rd Dept, 2001][good cause shown for late proffer of motion for summary judgment due to defendant’s out-of-state incarceration and lack of communication between the parties]; Jones v Hercules Construction Co., 14 Misc 3d 1212 (A), *2 [Sup Ct, Kings Co, 2006][matter placed on inactive status due to plaintiff’s incarceration]).

The Court has considered the limited duration of claimant’s incarceration, the obstacles he would face if compelled to conduct a trial while confined, and the absence of proof that defendant would suffer any prejudice if the trial is adjourned and, on balance, finds that an adjournment of the trial is “the least drastic course of action without any consequences to the dilatory party” (Basetti v Nour, supra at 134). However, claimant shall be required to notify the Court of his release from jail within twenty days from the date thereof.

Accordingly, it is

ORDERED that Motion No. M-72957 is hereby granted in part and denied in part; and it is further

ORDERED that the trial is hereby adjourned, without date, pending claimant’s release from jail; and it is further

ORDERED that claimant shall notify the Court in writing when he has been released from jail within twenty days from the date of his release.

April 4, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:
  1. Notice of Motion filed on February 13, 2007;
  2. Affirmation in Support of Motion sworn to on February 9, 2007; and
  3. Affidavit in Opposition to Motion sworn to on February 16, 2007 with exhibits.