New York State Court of Claims

New York State Court of Claims

MOSBY v. THE STATE OF NEW YORK, #2009-041-004, Claim Nos. 115977, 116345-A, Motion Nos. M-76069, M-76240


Synopsis


Claimant’s motion to consolidate lost property claim with negligent medical treatment claim is denied since actions do not involve common question of law or fact.

Case Information

UID:
2009-041-004
Claimant(s):
MALIK AZ’RAEL MOSBY
Claimant short name:
MOSBY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115977, 116345-A
Motion number(s):
M-76069, M-76240
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
MALIK AZ’RAEL MOSBYPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Stephen J. Maher, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves in claim 115977 to amend the claim pursuant to CPLR 3025 (b). Defendant has consented to the relief requested and has served an answer to the amended claim. The motion to amend the claim is denied as moot. Claimant also moves to consolidate claim 115977, which alleges negligent medical treatment of claimant while an inmate at various correctional facilities, with claim 116345-A, which alleges that defendant lost personal property of claimant. Claimant argues that the property loss claim “is relevant to the extent of the further emotional distress incurred from the lack of medical treatment.” Defendant opposes the consolidation motion because the claims are unrelated.

CPLR § 602 (a) provides as follows:
“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated.”
“The power to order consolidation rests in the sound discretion of the court and should be granted in the interest of judicial economy where common issues of law or fact exist” (Skelly v Sachem Cent. School Dist., 309 AD2d 917 [2d Dept 2003]).

There are no common issues of law or fact in the instant claims and the claimant’s motion to consolidate claim numbers 115977 and 116345-A is denied.


March 5, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Notice of Motion to Amend Claim, filed January 12, 2009 and attached exhibits;
  2. Claimant’s Notice of Motion to Consolidate Claims, filed January 26, 2009 and attached exhibits;
  3. Unsworn Statement of Malik Az’Rael Mosby, dated January 22, 2009;
  4. Letter of Stephen J. Maher, dated February 13, 2009;
  5. Affirmation of Stephen J. Maher, dated February 20, 2009.