New York State Court of Claims

New York State Court of Claims
PEREZ v. THE STATE OF NEW YORK, # 2010-033-378, Claim No. 110845, Motion No. M-77522


Case information

UID: 2010-033-378
Claimant(s): THOMAS PEREZ
Claimant short name: PEREZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110845
Motion number(s): M-77522
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Steven R. Blyer, Esq.
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
Third-party defendant's attorney:
Signature date: April 19, 2010
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim for injuries by Thomas Perez (hereinafter "claimant") due to the alleged medical malpractice of defendant. The alleged medical malpractice occurred on May 9, 2003 at Stony Brook University Hospital, Stony Brook, New York.

A claim was served upon defendant and issue was joined in 2005. Thereafter, discovery was commenced between the parties. Claimant seeks the testimony of Dr. Richard D. Lewis as a non-party witness. Dr. Lewis was an attending physician at defendant's hospital and participated in the care of claimant. Dr. Lewis is no longer employed at defendant's hospital and is practicing in Texas. In addition, claimant brought suit against Dr. Lewis, individually, in Supreme Court, Suffolk County.

Claimant submitted an order for an open commission upon consent of defendant for the testimony of Dr. Lewis. The date scheduled for the deposition was August 24, 2009. Prior to the date of the deposition, claimant was informed by Dr. Lewis' attorney that Dr. Lewis would not appear for this deposition.

Claimant moves this Court for an order holding Dr. Lewis in contempt(1) .

In opposition to this motion, Dr. Lewis' attorney, indicates Dr. Lewis is a party in the Supreme Court, Suffolk County action and does not wish to waive the order of the depositions in that matter. Counsel has indicated his client will appear jointly for both actions but only when it is convenient in the Supreme Court action.

The establishment of the court system is found in Article VI of the New York State Constitution. Article VI, 7 states that the Supreme Court shall "have general original jurisdiction in law and equity and the appellate jurisdiction herein provided."

The Supreme Court in this State is a court of general original jurisdiction in law and equity (see N. Y. Const., art. VI, 7, subd. a.) and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings, irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party.

(Kaminsky v Kahn, 23 AD2d 231, 236).

Separately, the Court of Claims is established by NY Const Art. VI, 9, which states, in relevant part that "[t]he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Court of Claims is limited to awarding money damages against the State of New York (Matter of Silverman v Comptroller of The State of New York, 40 AD2d 225).

The Supreme Court and the Court of Claims are equal courts of original jurisdiction. Neither court can control the other, even when dealing with the same incident.

In this action, claimant is entitled to the deposition of Dr. Lewis. This Court has no power to correct slow discovery in the Supreme Court action. Dr. Lewis' argument that he would like a certain priority in the Supreme Court action carries no weight in this Court, just as this Court's orders would carry no weight in a Supreme Court action. Dr. Lewis is a non-party witness in this action and must answer the open commission.

Dr. Lewis had several options if he wanted to avoid the open commission. The easiest would have been to have his attorney contact my Chambers to discuss the matter. Counsel could have moved for a protective order or to quash the subpoena. Instead, counsel gave Dr. Lewis the worst advice possible, to willfully disobey this Court's Order.

This Court is fully empowered to hold Dr. Lewis in contempt pursuant to Judiciary Law 753. However, in order to do so, Dr. Lewis must be put on notice pursuant to Judiciary Law 756 which requires certain statutory language to be placed on the notice of motion or order to show cause. As claimant has failed to make a proper application, the Court must deny claimant's motion to hold Dr. Lewis in contempt.

Counsel is also warned. While this motion is being denied for its failure to be properly made, if it is brought back in proper form, this Court will impose a punishment for contempt if the facts are as outlined above and admitted to by Dr. Lewis. Counsel would better serve his client by making arrangements for the open commission to be held, without consideration of the Supreme Court action. In that event, this Court would look upon Dr. Lewis' contempt in a better light than now.

Based upon the foregoing claimant's motion is denied.

April 19, 2010

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. The following papers were read and considered on claimant's motion: Notice of Motion dated November 25, 2009 and filed December 3, 2009; Affirmation in Support of Steven R. Blyer, Esq. with annexed Exhibits A-D dated November 25, 2009 and filed December 3, 2009; Attorney's Affirmation in Opposition to Plaintiff's Motion for Contempt of James E. Eagan, Esq. with annexed Exhibit A dated December 18, 2009 and filed December 22, 2009.