6-10 Filed papers: Claim, Answer, Morris and King v State of New York, UID #
2007-030-508, Claim No. 107810, Motion No. M-72436 (Scuccimarra, J., filed
February 7, 2007); Morris and King v State of New York, UID #
2007–030-562, Claim No. 107810, Motion No. M-73185, Interim Decision and
Order (Scuccimarra, J., filed October 9, 2007); Morris and King v State of New
York, UID # 2007–030-580, Claim No. 107810, Motion No. M-73185, Final
Decision and Order (Scuccimarra, J., filed January 16, 2008)
The underlying claim in this matter involves the alleged medical malpractice of
defendant’s agents in their treatment of the infant claimant, Ariyah
Morris, at Downstate Medical Center commencing on June 3,
The claim is brought by the mother
individually and on behalf of the infant
Issue was joined in 2003.
This motion to strike the note of issue is in the wake of several attempts by
counsel of record for the claimants to be relieved, such order conditionally
granting counsel’s application to be relieved having been filed on January
16, 2008. Counsel for claimants failed to satisfy the conditions required by
this Court to be relieved as counsel, however, rendering the relief granted a
nullity, forcing the matter into limbo, and subjecting the matter to dismissal
for failure to prosecute. The appropriate notice was given by certified mail,
return receipt requested on or about April 14, 2008. See Civil Practice
Law and Rules §3216(b)(3).
In response to the directive that the claimants resume prosecution or face
dismissal of the claim, counsel for claimants filed a note of issue and
certificate of readiness on June 10, 2008. This motion to strike the note of
issue followed, asserting that despite the pendency of this matter for five (5)
years discovery is not complete. This is not surprising given that counsel for
claimants have been attempting to obtain a Court order relieving them from
representation since October 2006. Notably, the primary basis for such requests
has been an inability to locate the claimants and/or communicate with
Counsel for the defendant indicates that no discovery materials have been
exchanged nor has any other discovery been conducted other than a deposition of
Rasheena King, claimant, on April 29, 2005, despite agreements by
claimants’ counsel to provide results of an endoscopy test regarding the
infant claimant agreed to in a Court conference on March 1, 2006. [Affirmation
by Daniel Chu, Assistant Attorney General, ¶8, Exhibit L]. A non-party
deposition scheduled for April 11, 2006 was never held as well. [Ibid.
Counsel for claimants has filed a cross-motion to be relieved from
representation. That application is denied, summarily, because such applications
may be made only by order to show cause, as counsel should be aware by now.
See Civil Practice Law and Rules §321(b)(2). Additionally, counsel
does not attest to any further attempts to contact the claimants, and does not
contest the representations by defendant’s counsel that discovery is not
complete, thus the motion to strike the note of issue and certificate of
readiness is granted. 22 NYCRR §206.12(d); see Civil Practice Law
and Rules §3402.
The attorneys for claimants have been trying to withdraw from representation
for two (2) years, but have been unable to complete this task because of
continued administrative failures to follow the Court’s directions.
Apparently, claimants themselves have not contacted their attorneys for at least
the same period of time, evincing at least a certain ambivalence with regard to
their intent to pursue this matter. The spurious filing of a note of issue with
full awareness that discovery is not complete, were such filing allowed to
stand, only places the matter in further limbo to be extended indefinitely.
Based on the foregoing, and in accordance with the Court’s direction that
prosecution be resumed within ninety (90) days of service of notice, and such
period having passed and no effective note of issue and certificate of readiness
having been filed herein, the claim is hereby in all respects DISMISSED for
failure to prosecute. Civil Practice Law and Rules §3216 (b) (3).