New York State Court of Claims

New York State Court of Claims

GRAZIANO v. THE STATE OF NEW YORK, #2008-030-573, Claim No. 110884, Motion No. M-75555


Synopsis



Case Information

UID:
2008-030-573
Claimant(s):
WILLIAM GRAZIANO
Claimant short name:
GRAZIANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110884
Motion number(s):
M-75555
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JEFFREY J. SHAPIRO & ASSOCIATES, LLCBy: JEFFREY J. SHAPIRO, 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:
November 5, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant’s motion to compel


discovery:

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

3-7 Filed Papers: Claim, Answer, Note of Issue and Certificate of Readiness filed December 12, 2007; Daily Report dated July 28, 2008; Stipulation adjourning motion “so ordered” October 1, 2008

No Opposition filed

In this claim alleging personal injuries resulting from the alleged negligence and medical malpractice of defendant’s agents at Stony Brook University Hospital, a note of issue and certificate of readiness for trial was filed on December 12, 2007, the latter attesting to the completion of all discovery and/or waiver of same. As directed in the Court’s Daily Report “so ordered” on July 28, 2008, and in the absence of an agreement to post note of issue discovery, defendant has made a motion to compel “claimant to respond to demands for disclosure in correspondence dated February 25, 2008.” Presumably this refers to an independent medical examination [IME] and depositions of claimant’s parents.

By stipulation “so ordered” by the Court on October 1, 2008, the parties agreed to adjourn the present motion to October 29, 2008 “to allow time to conduct an independent medical examination [IME] of the plaintiff and to conduct the non-party depositions of plaintiffs mother and father.” Not having heard otherwise, and the submission date of this motion having passed, it is presumed that once again consent discovery has broken down.

Defendant is absolutely entitled to a physical examination of the claimant by a physician of its choosing given that the claimant’s physical condition is “in controversy.” Civil Practice Law and Rules §3121(a). Additionally, the parties appear to have agreed in concept that claimant’s parents will be deposed.

NOW THEREFORE, and unless the parties agree otherwise by written stipulation to be so ordered by the Court it is hereby

ORDERED that claimant appear for an IME at a time and place of defendant’s choosing, upon service of a proper notice of same. Notice for the IME of the claimant shall be served by defendant within fifteen (15) days of the filing date of this decision and order, or such IME is waived; and it is further

ORDERED that claimant’s parents be produced for examination before trial upon defendant’s service of a proper notice of deposition [Civil Practice Law and Rules §3107]. Defendant shall serve such notice within fifteen (15) days of the filing date of this decision and order, or such depositions are waived; and it is further

ORDERED that should claimant fail to appear for an IME, and should claimant’s parents not appear for deposition, upon defendant’s timely service of notices for same within fifteen (15) days of the filing date of this decision as directed herein, the court shall consider alternate relief including any motion application for striking the note of issue and certificate of readiness and dismissal of the claim as appropriate.

Accordingly, defendant’s motion to compel [M-75555] is granted as set forth above.



November 5, 2008
White Plains, New York

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