New York State Court of Claims

New York State Court of Claims

McDOWELL v. THE STATE OF NEW YORK, #2009-009-011, Claim No. 115037, Motion No. M-76451


Synopsis


Defendant’s motion to strike the previously served Note of Issue and Certificate of Readiness was granted.

Case Information

UID:
2009-009-011
Claimant(s):
SHAWN McDOWELL
Claimant short name:
McDOWELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115037
Motion number(s):
M-76451
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
SHAWN McDOWELL, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Bonnie G. Levy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 2, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has timely brought this motion seeking an order striking the Note of Issue and Certificate of Readiness which has been filed with the Clerk of the Court.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2


Affirmation in Opposition, with Exhibits 3

In this claim, claimant seeks damages for personal injuries allegedly suffered by him when he tripped and fell at the entranceway to the State Office Building in Syracuse, New York on April 11, 2006. His claim was filed with the Clerk of the Court of Claims on March 28, 2008. Subsequently, claimant brought a motion to dismiss certain defenses asserted by the defendant in its Verified Answer, and a Decision and Order[1] of this Court disposing of this motion was filed on October 7, 2008. Claimant thereafter filed a Note of Issue and Certificate of Readiness on February 26, 2009, and served this Note of Issue and Certificate of Readiness upon the Attorney General on February 25, 2009.

In her Affirmation in support of this motion, defendant’s attorney affirms that depositions have not yet been conducted, discovery demands are outstanding (defendant apparently served its discovery demands concurrently with this motion) and complete medical records have not been obtained.

Based on the foregoing, defendant has established to the satisfaction of this Court that this claim is not ready for trial, and that the Note of Issue and Certificate of Readiness should therefore be stricken (§ 206.12[d] of the Uniform Rules for the Court of Claims).

Accordingly, it is

ORDERED, that Motion No. M-76451 is hereby GRANTED; and the Clerk of the Court of Claims is directed to strike the Note of Issue and Certificate of Readiness previously filed in this claim; and it is further

ORDERED, that claimant shall have 45 days from the date of filing of this Decision and Order to respond to the discovery demands of the defendant; and it is further

ORDERED, that all discovery and depositions shall be completed on or before January 22, 2010, and a Note of Issue and Certificate of Readiness shall be served and filed by claimant by February 19, 2010.


June 2, 2009
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. See Decision and Order to Motion No. M-75001.