New York State Court of Claims

New York State Court of Claims

DAVID v. THE STATE OF NEW YORK, #2009-009-026, Claim No. 109449, Motion No. M-76898


Synopsis


Claimant’s motion to reinstate his claim was granted.

Case Information

UID:
2009-009-026
Claimant(s):
PATRICK DAVID
Claimant short name:
DAVID
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109449
Motion number(s):
M-76898
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
MORRISON & WAGNER, LLP
BY: Eric H. Morrison, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 10, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order reinstating his claim.

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

This claim, alleging negligence against the State, was filed on June 7, 2004. Pursuant to an Amended Order of this Court dated June 2, 2008, disclosure was to be completed on or before September 26, 2008, and a Note of Issue and Certificate of Readiness was to be filed and served on or before October 17, 2008. Claimant did not serve and file his Note of Issue as so directed, nor did he request from the Court any extension of time in which to comply with this Order. As a result, at a calendar call conducted by the Court on June 9, 2009, this claim was dismissed, without prejudice. This motion to reinstate the claim ensued.

In his supporting affirmation, claimant’s counsel states that although claimant was previously deposed, a Note of Issue was not served or filed due to other outstanding discovery issues. Claimant’s attorney indicates that the defendants (sic) have failed to appear for depositions, despite numerous demands made by the claimant.

In her affirmation in opposition to this motion, however, defendant’s attorney has satisfied the Court that no such demands have yet been made, and that there has been no dilatory conduct on the part of the defendant or its attorney that has contributed to the failure of the claimant to timely serve and file his Note of Issue.

Nevertheless, it does appear that claimant has not abandoned this claim, and it appears that claimant and his attorneys will make a concerted effort to comply with scheduled time frames for the completion of discovery, to be established by the Court.

Accordingly, it is

ORDERED, that Motion No. M-76898 is hereby GRANTED; and it is further

ORDERED, that Claim No. 109449 is hereby reinstated and restored to this Court’s calendar of open and untried claims, and it is further

ORDERED, that all discovery, including any and all depositions not yet conducted, shall be completed by May 14, 2010, and that claimant is directed to serve and file his Note of Issue and Certificate of Readiness on or before June 18, 2010.


September 10, 2009
Syracuse, New York

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