Opinion
# 2018-015-141 Claim No. 128342 Motion No. M-92103
08-07-2018
SHAWN GRANGER v. THE STATE OF NEW YORK
Franzblau Dratch, P.C. No Appearance Honorable Barbara D. Underwood, Attorney General By: Joseph D. Callery, Esq., Assistant Attorney General
Synopsis
Defendant's motion to strike the Note of Issue was granted and claimant's counsel was directed to show cause why the claim should not be dismissed in light of his failure to comply with a previously served 90-Day Demand.
Case information
| UID: | 2018-015-141 |
| Claimant(s): | SHAWN GRANGER |
| Claimant short name: | GRANGER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128342 |
| Motion number(s): | M-92103 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Franzblau Dratch, P.C. No Appearance |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Joseph D. Callery, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 7, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to strike the Note of Issue alleging material facts in the Note of Issue are false and the claim is not ready for trial.
In response to a 90-Day Demand served by the Court pursuant to CPLR 3216 on January 4, 2018, claimant's counsel, Franzblau Dratch, P.C., filed the Note of Issue and Certificate of Readiness for Trial on March 16, 2018. The Certificate of Readiness for Trial indicated, among other things, that a bill of particulars was served and filed, physical examinations were waived, discovery proceedings now known to be necessary were completed and that there were no outstanding requests for discovery.
In support of its motion to strike the Note of Issue, defense counsel avers that claimant's counsel has failed to provide responses to its discovery demands, including its demand for a bill of particulars, and has failed to comply with its request for an independent medical examination and examination before trial. Claimant has failed to oppose the motion.
A party may move to strike the Note of Issue within 20 days after service of the Note of Issue and certificate of readiness showing in what respects the case is not ready for trial (22 NYCRR § 206.12 [d]). "[T]he court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of [§ 206.12] in some material respect" (22 NYCRR § 206.12 [d]). Defendant's motion was timely, having been served within 20 days after service of the Note of Issue.
Contrary to the representations made in claimant's certificate of readiness, not all discovery has been completed. In fact, it appears the claimant has failed to provide any discovery at all. Claimant has not responded to defendant's discovery demands, has not provided a bill of particulars, has not submitted to an independent medical examination and he has not complied with defendant's request for an examination before trial. Inasmuch as it appears material facts in the certificate of readiness are incorrect, the Note of Issue is stricken.
In light of the claimant's clear failure to comply with the 90-Day Demand served by the Court on January 4, 2018, claimant's counsel Franzblau Dratch, P.C., is directed to show cause at the Chambers of the Hon. Francis T. Collins, J.C.C., located at 65 South Broadway, Saratoga Springs, New York, on the 19thday of September, 2018 at 10:00 a.m. why this claim should not be dismissed for failure to prosecute pursuant to CPLR 3216 (see Cadichon v Facelle, 18 NY3d 230 [2011], rearg denied 18 NY3d 935 [2012]; CPLR § 205 [a]). Papers submitted in support of or in opposition to dismissal may be served and filed in the Clerk's office no later than August 31, 2018.
Based on the foregoing, the defendant's motion is granted and the Clerk of the Court of Claims is directed to strike the Note of Issue and Certificate of Readiness previously filed in this claim.
August 7, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion. dated April 9, 2018;
2. Affirmation of Joseph D. Callery, Esq., dated April 2, 2018, with Exhibits A and B;
3. 90-Day Demand dated January 4, 2018;
4. Affidavit of Service of Kathleen M. Cole, sworn to January 4, 2018;
5. Return receipt card signed as received on January 9, 2018.