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
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
. 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
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
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
.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.