Defendant's motion to strike the Note of Issue was denied.
|Claimant(s):||DARLEEN LIEBER and ROBERT LIEBER, Individually and as Parents and Natural Guardians of JORDAN LIEBER, an Infant over the age of Fourteen Years|
|Claimant short name:||LIEBER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||RIEHLMAN, SHAFER & SHAFER
BY: Jane G. Kupperman, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Senta B. Siuda, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 16, 2009|
|See also (multicaptioned case)|
Defendant has brought this motion seeking an order striking the Note of Issue and Certificate of Readiness which was filed with the Clerk of the Court on September 24, 2009.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support 1,2
Attorney Affidavit in Opposition, with Exhibits 3
In this claim, claimants seek damages based upon medical malpractice allegedly occurring during the treatment of their son, Jordan Leiber, at University Hospital in Syracuse, New York. Pursuant to the most recent scheduling order issued by this Court, dated December 18, 2008, all discovery was to be completed on or before August 28, 2009, and a Note of Issue and Certificate of Readiness was to be served and filed on or about September 25, 2009. In compliance with this order, and as set forth above, claimants served their Note of Issue on or about September 22, 2009 and filed the Note of Issue with the Clerk of the Court of Claims on September 24, 2009. Defendant now seeks to vacate this Note of Issue, contending that discovery is not, or may not be, completed. Initially, claimants contend that since this is a motion related to discovery, defendant failed to comply with § 206.8 of the Uniform Rules for the Court of Claims, which requires a party to confer with the Court prior to bringing any such discovery motion.
Although a motion seeking to vacate a Note of Issue may technically be considered a motion relating to discovery, this Court does not require a conference pursuant to § 206.8 of the Uniform Rules for the Court of Claims due to the relatively brief time frame in which such a motion must be made (§ 206.12[d] of the Uniform Rules for the Court of Claims). Upon inquiry with respect to this motion, this Court advised the Motion Unit of the Court of Claims of this position, and this motion therefore has been properly and timely instituted.(1)
Turning to the merits of this motion, the State contends that several aspects of discovery remain to be completed. As this Court is well aware, claimants have also brought a motion in which they seek summary judgment as to liability. This motion was previously adjourned to this Court's December 16, 2009 Motion Calendar, and after submission of papers, is currently awaiting decision by this Court. Defendant contends that additional discovery may be required should this Court deny claimants' motion for summary judgment. However, a motion to strike cannot be granted upon mere speculation, and can be vacated only in situations where there are legitimate discovery requests that are outstanding (Ireland v GEICO Corp., 2 AD3d 917).
Similarly, defendant also speculates that there may be outstanding medical reports due from claimants. Claimants' attorney, however, verifies that claimants have provided defendant with copies of all medical records in their possession, and have also forwarded proper authorizations to the defendant. As a result, it appears that there are no outstanding requests for medical reports which would justify striking the Note of Issue.
Defendant further contends that it has not yet had an opportunity to conduct a physical examination of Jordan Lieber. While counsel for the parties may not be familiar with this Court's usual practices and procedures, in the vast majority of cases before it this Court conducts a bifurcated trial pursuant to § 206.19 of the Uniform Rules for the Court of Claims. In such cases, this Court commonly authorizes a physical examination of the claimant to be performed after a determination of liability has been made. Although no decision has yet been made whether the trial of this claim is to be bifurcated, even if the trial is not bifurcated the Court has noted defendant's concern herein, and assures defendant that it will be given an opportunity to conduct a physical examination of Jordan Lieber prior to trial.
Defendant has also stated that it has not yet provided expert disclosure to the claimants, and has only obtained claimants' expert disclosure in conjunction with their motion for summary judgment. Again, the parties may be unfamiliar with its practices and procedures, but this Court recognizes that experts are often not retained prior to the service and filing of a trial note of issue. Therefore, when scheduling a trial, whether it is to be bifurcated or unified, this Court explicitly allows post-note of issue expert disclosure, and establishes firm deadlines for such disclosure.
In sum, and in accordance with the foregoing, defendant has not established sufficient reason to strike the Note of Issue herein. Furthermore, should the need arise, defendant may make application to the Court for permission to conduct post-note of issue discovery pursuant to § 206.12(c) of the Uniform Rules for the Court of Claims.
Accordingly, it is therefore
ORDERED, that Motion No. M-77263 is hereby DENIED.
December 16, 2009
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
1. Additionally, 22 NYCRR 202.7(a), which requires an Affirmation of Good Faith in motions relating to discovery, is not applicable to actions brought in the Court of Claims.