New York State Court of Claims

New York State Court of Claims

BAILEY v. THE STATE OF NEW YORK, #2008-009-030, Claim No. 111521, Motion No. M-75415


Synopsis


Defendant’s motion to strike claimants’ Note of Issue was granted.

Case Information

UID:
2008-009-030
Claimant(s):
KRISTINA L. BAILEY and EDWARD S. BAILEY
Claimant short name:
BAILEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111521
Motion number(s):
M-75415
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
KRISTINA BAILEY, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Maureen A. MacPherson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
October 30, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order striking the note of issue and certificate of readiness which has been filed by the claimants.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibit 1,2

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, eff. 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, 2008.[1]

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.


October 30, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. In her Affirmation in support of this motion, defendant’s attorney incorrectly states that this Court did not grant claimants’ request for a six month extension of the discovery timetable (Item 2, par. 5).