New York State Court of Claims

New York State Court of Claims

RINK v. STATE OF NEW YORK, #2009-018-038, Claim No. 114132, Motion No. M-76797


Synopsis


Based upon a Order made by the Hon. Brian DeJoseph, Justice of the Supreme Court, Onondaga County and pursuant to CPLR 1201, it appears appropriate to substitute Ralph Rink as Appointed Guardian of the Person and Property of Joanne Rink, as the Claimant in the caption of this action in place of Joanne Rink; it is appropriate for the Court to grant permission for the Claimant to file a Certificate of Merit pursuant to CPLR 3012-a; Defendant’s sixth affirmative defense will be dismissed thirty days from the date this Decision and Order is filed with the Clerk of the Court, unless no Certificate of Merit is filed within that time frame.

Case Information

UID:
2009-018-038
Claimant(s):
RALPH RINK, as Guardian of the Person and the Property of JOANNE RINK, and RALPH RINK, Individually
Claimant short name:
RINK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114132
Motion number(s):
M-76797
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
WALTER D. KOGUT, ESQUIRE
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: MAUREEN A. MacPHERSON, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 17, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

A motion is brought on behalf of Claimant by her husband and Appointed Guardian of her property for an order amending the caption of the claim to reflect his appearance as the Guardian of her person and property, for permission to file a Certificate of Merit pursuant to CPLR 3012-a, and dismissing Defendant’s sixth affirmative defense.

It appears from Exhibit A, attached to the motion papers, that the Honorable Brian F. DeJoseph , Justice of the Supreme Court, Onondaga County, signed an order dated October 2, 2007, appointing Ralph Rink as the Guardian of the Person and the Property of Joanne Rink and granting him the authority to “defend or maintain any judicial action or proceeding to a conclusion” on her behalf. Based upon that order and pursuant to CPLR 1201, it appears appropriate to substitute Ralph Rink as Appointed Guardian of the Person and the Property of Joanne Rink, as the Claimant in the caption of this action in place of Joanne Rink.

Permission is also sought to file a Certificate of Merit pursuant to CPLR 3012-a. CPLR 3012-a, in pertinent part, requires that in any action for medical malpractice the claim must be accompanied by a certificate executed by the Claimant’s attorney stating that the attorney has reviewed the facts of the case and consulted with at least one licensed physician knowledgeable in the relevant issues and has concluded that there is a reasonable basis for commencing this action; or the attorney was unable to obtain the required consultation because of time limitations; or the attorney has tried to obtain the required consultation and has been denied such a consultation by at least three physicians. Here, Claimant failed to file the certificate of merit with her claim, which Claimant’s counsel attributes to an inadvertent mistake. Under these circumstances and, at this juncture, it is appropriate for the Court to grant such permission (see Markowitz v State of New York, 37 AD3d 1106; Dye v Leve, 181 AD2d 89).

Claimant also seeks dismissal of Defendant’s sixth affirmative defense asserting the failure to file a Certificate of Merit with the claim warrants dismissal of the action. This defense is appropriate to be dismissed once Claimant has filed the Certificate of Merit.

Accordingly, Claimant’s motion is granted as follows:
1) The caption shall be amended to provide: Ralph Rink, as Guardian of the Person and the Property of Joanne Rink, and Ralph Rink, Individually, Claimants, versus the State of New York, Defendant.
(2) Claimant has thirty (30) days from the date this Decision and Order is filed with the Clerk of the Court to file and serve a Certificate of Merit in accordance with CPLR 3012-a.
(3) Defendant’s sixth affirmative defense will be dismissed thirty days from the date this Decision and Order is filed with the Clerk of the Court, unless no Certificate of Merit is filed within that time frame.



August 17, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Walter D. Kogut, Esquire, in support, with exhibits attached thereto.

3. Reply affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in opposition.