New York State Court of Claims

New York State Court of Claims

MARINO v. THE STATE OF NEW YORK, #2008-033-294, Claim No. 109417, Motion Nos. M-74353, M-74416


Synopsis



Case Information

UID:
2008-033-294
Claimant(s):
CARLOS MARINO
Claimant short name:
MARINO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109417
Motion number(s):
M-74353, M-74416
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Carlos Marino, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 25, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a timely filed claim for damages by Carlos Marino (hereinafter “claimant”) based upon the alleged medical malpractice while the claimant was incarcerated at Eastern Correctional Facility, Napanoch, New York.[1] The malpractice was for the failure to treat an infection in claimant’s ear.

On July 20, 2007, a Decision was filed after trial of the claim. The Court found in favor of claimant and awarded claimant the sum of $30,000.00.


Claimant moves this Court (M-74353), pursuant to CPLR 4404 for an order setting aside the verdict and asks to be heard on the matter of damages[2]. Claimant contends that the damages awarded are insufficient and seeks an award of $1,500,000.00. Claimant also moves this Court (M-74416) for subpoenas for the appearance of a doctor and for records[3].

In opposition to claimant’s motion, defendant argues that the motion is beyond the 15-day time limit provided in CPLR 4405.

A motion made pursuant to CPLR 4404 must be made within 15 days (CPLR 4405). However, the 15-day time limit is not absolute and may be waived if there are persuasive reasons why the moving party failed to comply with the statutory period (see Steinberg v State Farm Mut. Auto. Ins. Co., 181 AD2d 766).

At trial, claimant testified that he had undergone two surgeries and would probably need additional surgery. Claimant also testified that he was told that his eardrum would eventually repair itself. Since the trial, claimant has undergone two additional surgeries. According to claimant’s Affidavit, approximately 90% of his eardrum is gone and the hearing loss in his ear is permanent. Between receiving the Court’s trial Decision and the filing of this motion, claimant ,who only speaks Spanish, was attempting to get bilingual legal help to review the Decision and understand his alternatives. Claimant was denied help by defendant until November 2007 (Affidavit of Joseph Soto attached in support of claimant’s reply to M-74353).

The Court finds claimant has demonstrated a persuasive reason for his failure to file his motion within the 15-day time limit. Defendant cannot deny access to bilingual help until after a deadline passes and then use the deadline to defeat claimant’s motion.

Claimant’s motion for so-ordered subpoenas is denied as unnecessary. Claimant may submit the subpoenas to the Court to be so ordered when a trial date is set.

Based upon the foregoing, claimant’s motion to set aside the damage portion of the verdict (M-74353) is granted and the judgment entered on July 27, 2007 is vacated. Claimant’s motion for so-ordered subpoenas (M-74416) is denied.


June 25, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].Claimant alleges a continuous course of treatment by the Correctional Facility doctors from March 2000 until November 1, 2002, when his care was taken over by a specialist. Claimant then served a notice of intention upon defendant on November 25, 2002.
[2].The following papers have been read and considered on claimant’s motion: Notice of Motion for New Trial of Judgment Notwithstanding Verdict dated December 18, 2007 and filed December 24, 2007; Affidavit in Support of Motion to Set Aside Judgement Notwithstanding Verdict of Carlos Marino with annexed Exhibits A-I verified December 18, 2007 and filed December 24, 2007; Affirmation in Opposition of Paul F. Cagino, Esq. dated December 27, 2007 and filed December 28, 2007; Affirmation in Reply to Opposition of Carlos Marino with annexed Exhibit J sworn to January 7, 2008 and filed January 10, 2008.
[3].The following papers have been read and considered on claimant’s motion: Notice of Motion dated January 7, 2008 and filed January 10, 2008; Affidavit in Support of Motion Pursuant to CPLR §§ 2305 (a) and 2302 (b) of Carlos Marino with annexed Exhibits sworn to January 7, 2008 and filed January 10, 2008.