Claimant, while an inmate,
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
, malpractice based upon a diagnosis of diabetic retinopathy and a
misdiagnosis of claimant’s carpal tunnel syndrome (Bastian v State of
8 AD3d 764 ). 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,
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
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.
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,