New York State Court of Claims

New York State Court of Claims

MORRIS/KING v. THE STATE OF NEW YORK, #2008-030-547, Claim No. 107810, Motion Nos. M-75159, CM-75160


Synopsis


Defense motion to strike the note of issue granted; cross-motion by counsel for claimant to be relieved denied, and claim dismissed for failure to prosecute, 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 having been filed. Civil Practice Law and Rules §3216 (b) (3). The spurious filing of a note of issue with full awareness that discovery is not complete, is not allowed. Claim pending for five (5) years with little to no discovery. Counsel for claimants have been attempting to obtain a Court order relieving them from representation for two (2) years but have been unable to complete this task because of continued administrative failures to follow directions. Notably, the primary basis for such requests has been an inability to locate the claimants and/or communicate with them

Case Information

UID:
2008-030-547
Claimant(s):
ARIYAH MORRIS an infant by her Mother and Natural Guardian RASHEENA KING and RASHEENA KING, Individually
Claimant short name:
MORRIS/KING
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107810
Motion number(s):
M-75159
Cross-motion number(s):
CM-75160
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JOSEPH T. MULLEN, JR. & ASSOCIATESBY: NEIL A. ZIRLIN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DANIEL CHU, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 6, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

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Decision

The following papers were read and considered on the cross-motions filed herein:

1,2 Notice of Motion; Affirmation by Daniel Chu, Assistant Attorney General and attached exhibits

3,4 Notice of Cross-Motion; Affirmation by Neil A. Zirlin of Counsel to Joseph T. Mullen, Jr. & Associates, Attorneys of record for Claimants, and attached exhibit

  1. Affirmation in Response to Claimants’ Cross-Motion and in Further Support of Defendant’s Motion to Strike the Note of Issue by Daniel Chu, Assistant Attorney General
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, 2001.[1] The claim is brought by the mother individually and on behalf of the infant claimant.[2] 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 them.

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. Exhibit M].

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).


August 6, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. This treatment is presumably from birth or shortly thereafter, although the claim does not make this clear.
[2].There is no indication in any filed papers of the infant claimant’s age, since the Clerk’s file is devoid of any copies of responses to demands for a bill of particulars or discovery demands in violation of Court rules. See 22 NYCRR §206.5. Apparently, however, claimants’ bill of particulars was served on the defendant, and contains an indication that as of September 3, 2003 - the date of the bill of particulars - the infant claimant was 2 years old. [See Affirmation by Daniel Chu, Assistant Attorney General, ¶3, Exhibit D]. The toll for infancy is contained in Civil Practice Law and Rules §208.