Correspondence dated October 6, 2008 from Maureen A. MacPherson, Esq., Assistant
Attorney General 3
In this claim, claimants seek damages for personal injuries allegedly suffered
by claimant Kristina L. Bailey, based upon allegations of medical malpractice
and negligence occurring on April 5, 2004, during a surgical procedure
performed at University Hospital, a hospital owned and operated by the State.
In a Decision and Order dated December 5, 2007 (and filed January 18, 2008),
this Court denied defendant’s motion to dismiss based upon
claimants’ failure to include the total sum of monetary damages in their
claim. The dismissal was based upon the recent amendment (Laws 2007, ch. 606,
August 15, 2007) to § 11(b) of the Court of Claims Act.
Shortly thereafter, this Court issued an Amended Order (at claimants’
request) directing that all discovery be completed on or before June 20, 2008,
and further directing claimants to serve and file their Note of Issue and
Certificate of Readiness on or before July 18,
On or about June 9, 2008, claimants then attempted to file a Certificate of
Readiness with the Clerk of the Court of Claims. The certificate was rejected,
since no Note of Issue or Affidavit of Service accompanied such certificate.
Thereafter, claimants then filed their Note of Issue and Certificate of
Readiness on July 16, 2008. According to the Affirmation of defendant’s
attorney, this Note of Issue and Certificate of Readiness was served upon
defendant on or about July 21, 2008.
Defendant now seeks to strike this Note of Issue and Certificate of Readiness.
In her Affirmation, defendant’s attorney affirms that claimant, Kristina
Bailey, has not yet submitted to a deposition and/or an independent medical
examination, and that the claim is therefore not yet ready for trial.
Additionally, defendant’s attorney has corresponded with claimant
Kristina Bailey and offered to adjourn this motion until such time as claimant
updated her medical records and submitted to the deposition and/or independent
medical examination (see Item 3).
Claimants have not responded to this motion, and to the best of this
Court’s knowledge, have not responded to the proposal from Assistant
Attorney General MacPherson set forth in her correspondence of October 6, 2008.
Based on the foregoing, the Court finds that defendant has timely brought this
motion and has also established that this claim is not ready for trial.
Accordingly, the Court hereby determines that the Note of Issue must be stricken
(§ 206.12[d] of the Uniform Rules for the Court of Claims).
Accordingly, it is
ORDERED, that Motion No. M-75415 is hereby GRANTED; and the Clerk of the Court
of Claims is directed to strike the Note of Issue and Certificate of Readiness
previously filed in this claim; and it is further
ORDERED, that all discovery and depositions shall be completed on or before
April 3, 2009, and a Note of Issue and Certificate of Readiness shall be served
and filed by May 1, 2009.