Defendant's motion for a final order of preclusion and dismissal of the claim was granted.
|Claimant(s):||KRISTINA BAILEY and EDWARD BAILEY|
|Claimant short name:||BAILEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||KRISTINA BAILEY and EDWARD BAILEY, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Maureen A. MacPherson, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 20, 2010|
|See also (multicaptioned case)|
Defendant has brought this motion seeking a final order of preclusion and dismissal of the claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibit 1,2
In a Decision and Order filed September 18, 2009 (Motion No. M-76809), this Court granted the defendant a conditional order of preclusion by directing claimants to answer fully the discovery demands of the defendant, and in particular to provide updated medical authorizations, dates of availability for a deposition of claimant Edward Bailey, and dates of availability for an Independent Medical Examination of claimant Kristina Bailey. The Court further directed that these responses were to be provided within 60 days from the filing date of that Decision and Order.
More than 60 days have elapsed from the filing date of said Decision and Order and as set forth in the papers before the Court, claimants have failed to provide the requested information and responses. The Court also notes that claimants have failed to submit any papers in opposition to this motion, and they did not submit any papers in opposition to the prior motion (M-76809) in which the Court granted the conditional order of preclusion.
Based on the foregoing, the Court finds that claimants have willfully violated an order of this Court directing disclosure, and it therefore grants defendant's motion for a final order of preclusion. Furthermore, it is readily apparent to this Court that claimants will not be able to prove a prima facie case of medical malpractice or negligence without any admissible evidence of claimant Kristina Bailey's medical condition and/or treatment. Therefore, defendant's further request to dismiss this claim must also be granted.
Accordingly, it is
ORDERED, that Motion No. M-77851 is hereby GRANTED, and claimants are hereby precluded from offering any evidence at trial directly related to the medical condition of claimant Kristina Bailey; and it is further
ORDERED, that Claim No. 111521 is therefore DISMISSED.
April 20, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims