New York State Court of Claims

New York State Court of Claims

BASTIAN v. THE STATE OF NEW YORK, #2008-044-524, Claim No. 104744, Motion No. M-74506


Claimant’s motion “to settle” the claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 11, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, while an inmate,[1] filed a claim on August 17, 2001 commencing this pro se medical malpractice action alleging that he did not receive adequate medical care while he was in the custody of the Department of Correctional Services (DOCS). Defendant State of New York (defendant) answered and asserted various affirmative defenses. Claimant was subsequently granted permission to file an amended claim to include, inter alia, malpractice based upon a diagnosis of diabetic retinopathy and a misdiagnosis of claimant’s carpal tunnel syndrome (Bastian v State of New York, 8 AD3d 764 [2004]). Defendant filed and served an answer to the amended claim. Defendant’s subsequent motion for summary judgment dismissing this action was denied (Bastian v State of New York, Ct Cl, July 5, 2007, Schaewe, J., Claim No. 104744, Motion No. M-72910 [UID # 2007-044-540]). Claimant now moves “to settle this lawsuit,” pursuant to CPLR 3222. Defendant opposes the motion.

Claimant argues that the Court should apply the law to the statement of facts submitted with his motion papers, and render a decision without further delay. Claimant also expresses concern that his deteriorating health, specifically vision problems, may prevent him from pursuing this action, and he requests that the matter be settled. Conversely, defendant contends that there is no agreement on the facts, and that CPLR 3222 is therefore not applicable to this action.

CPLR 3222 (a) provides that “[a]n action  . . . may be commenced by filing with the clerk a submission of the controversy, acknowledged by all parties in the form required to entitle a deed to be recorded. The submission shall consist of a case, containing a statement of the facts upon which the controversy depends, and a statement that the controversy is real and that the submission is made in good faith for the purpose of determining the rights of the parties.”

Claimant’s motion is procedurally defective. The statement of facts submitted on this motion is merely claimant’s one-sided version of the events underlying this claim, rather than an agreed upon statement as contemplated by the statute (see generally, Siegel, NY Prac § 304, at 490 [4th ed]). Moreover, neither party has properly acknowledged the submission, and defendant specifically opposes the Court’s resolution of the case in this accelerated manner. Accordingly, claimant’s application for submission of this controversy pursuant to CPLR 3222 is denied.

To the extent that claimant is requesting a settlement conference, it must also be denied. A settlement conference may be scheduled “as the [C]ourt may deem helpful or necessary” (Uniform Rules for the Court of Claims [22 NYCRR] § 206.10 [e]). However, the Court declines to direct a conference in this instance (id.). Defendant, as evinced by its previous motion for summary judgment, is apparently taking a no-liability stance. Although claimant is free to contact defendant directly to initiate settlement discussions, “[i]t is unnecessary and arguably unwise for the Court, the ultimate trier of fact, to be involved in such matters” (Forshey v State of New York, Ct Cl, Nov. 10, 2003, Minarik, J., Claim No. 105817, Motion Nos.

M-66810, M-66880, Cross Motion No. CM-66887 [UID # 2003-031-083]).

Claimant’s Motion No. M-74506 is therefore denied in its entirety.

March 11, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on January 30, 2008; Statement of Facts of George F. Bastian, III, sworn to on January 26, 2008.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated February 12, 2008.

Filed papers: Claim filed on August 17, 2001; Verified Answer filed on September 12, 2001; Amended Claim filed on August 23, 2006; Verified Answer To Amended Claim filed on August 28, 2006.

[1]. Claimant is no longer in the custody of the Department of Correctional Services.