Opinion
# 2014-048-148 Claim No. 117104 Motion No. M-84220 Cross-Motion No. CM-85034
06-20-2014
LEVOLA v. THE STATE OF NEW YORK
MARK W. LEVOLA, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney
Synopsis
Case information
| UID: | 2014-048-148 |
| Claimant(s): | MARK W. LEVOLA |
| Claimant short name: | LEVOLA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117104 |
| Motion number(s): | M-84220 |
| Cross-motion number(s): | CM-85034 |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | MARK W. LEVOLA, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | June 20, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Mark W. Levola, seeks damages for personal injuries allegedly sustained between March 2007 and March 2009 as a result of Defendant's medical malpractice and/or negligence, while he was an inmate at various Department of Correctional Services ("DOCS")
DOCS is now known as the Department of Corrections and Community Supervision ("DOCCS") (see L 2011, c 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
facilities, including Riverview Correctional Facility, Groveland Correctional Facility, Gouverneur Correctional Facility and Gowanda Correctional Facility. His Claim, filed July 10, 2009 and given Claim Number 117104, consists of 441 paragraphs and alleges a continuation of negligence and medical malpractice that began in 2004 and resulted in, among other things, the exacerbation of certain orthopedic and urologic conditions. Claimant contends that, notwithstanding his recurrent medical complaints and sick call visits while he was incarcerated, he was deprived of "specialized heathcare treatments" (Claim, ¶ 8), including back supports, leg braces and other mobility devices, and that Defendant failed to diagnose certain medical conditions, including conditions associated with his left groin and abdomen regions (see Claim, ¶ 9), resulting in continuous bowel pain, pressure, bleeding and impaired function, among other issues (see Claim, ¶¶ 42-50, 90, 93). Claimant also alleges that, in June 2007, Defendant committed malpractice in failing to properly treat a pre-existing neck injury (see Claim, ¶¶ 74, 96-102), and committed dental malpractice in commencing July 2007 by failing to timely and properly treat a decaying tooth (see Claim ¶¶ 63-67). Claimant also makes allegations that, in July 2007, while being housed in the Special Housing Unit (SHU), a correction officer assaulted him (see Claim, ¶¶ 110, 111) and that, during his SHU incarceration, certain personal property - including his radio, headphones, eating utensils and food - was lost or stolen (see Claim, ¶¶ 21 and 22). Claimant also alleges that facility staff falsified his medical records (see Claim, ¶ 179) and, in September 2007, improperly reviewed Claimant's confidential medical records (see Claim, ¶¶ 183-185).
In 2008, Claimant filed an earlier Claim, which was given Claim Number 115904, alleging medical malpractice and/or negligence from 2004 through 2006, while he was an inmate under the supervision of DOCS. That Claim is pending in another Court of Claims district.
In response to Defendant's demand made pursuant to CPLR 3216, Claimant now moves seeking an extension of time to file a Note of Issue and Certificate of Readiness, contending that ongoing medical issues and his inability to retain counsel have caused a delay in filing the Note of Issue and Certificate of Readiness. Defendant opposes Claimant's motion,
To the extent that Defendant makes procedural challenges to Claimant's motion (see Affirmation of Thomas Trace, Esq., dated November 25, 2013, ¶ 6), as Defendant has not articulated any prejudice by the filing of Claimant's motion and has been able to fully respond, the Court will disregard any technical defects with respect to the motion (see CPLR 2001).
and has also cross-moved for an order dismissing the Claim pursuant to CPLR 3216 based upon Claimant's failure to prosecute the Claim. Claimant opposes Defendant's cross motion.
CPLR 3216 authorizes the Court to dismiss a Claim for a claimant's failure to prosecute so long as issue has been joined, one year has elapsed since the joinder of issue, and a proper written demand to resume prosecution and serve and file a Note of Issue within 90 days after receipt of such demand has been served upon the claimant (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]). Upon receipt of a 90-day demand, a claimant is required to either timely file the Note of Issue or move, before the default date, to either vacate the demand or extend the 90-day period pursuant to CPLR 2004 (see Sanchez v Serje, 78 AD3d 1155, 1156 [2d Dept 2010]). If a claimant defaults, he or she must demonstrate a reasonable excuse for the default and a good and meritorious cause of action to avoid dismissal for failure to prosecute. However, if a claimant, within that 90-day period, moves to vacate the demand or for an extension of time, he need only demonstrate his "need for the extension or good excuse for past delay" (Vasquez v State of New York, 12 AD3d 917, 919 [3d Dept 2004] [internal quotation marks and citations omitted]; see Grant v City of New York, 17 AD3d 215, 217 [1st Dept 2005]).
The record before the Court reveals that the Claim was filed on July 10, 2009. An Answer was filed on August 13, 2009. By Order filed March 7, 2012, the matter was transferred to my Individual Assignment System (IAS) calendar (see Order, filed March 7, 2012). The parties thereafter appeared at a conference and stipulated to a Scheduling Order that was issued on September 11, 2012 (see Scheduling Order, issued September 11, 2012). That Scheduling Order required, among other things, that Claimant file a Note of Issue and Certificate of Readiness on or before March 4, 2013. At Claimant's request and with Defendant's consent, the Court issued a Revised Scheduling Order on May 23, 2013, requiring Claimant to file a Note of Issue and Certificate of readiness by July 9, 2013 (see Revised Scheduling Order, issued May 23, 2013). A Note of Issue was not served and filed by July 9, 2013, and Claimant failed to appear at a status conference that day. As a result, Defendant served a 90-day demand, which Claimant received on July 29, 2013. By the instant motion, Claimant has timely moved to vacate that demand (see Claimant's Motion No. M-84220; Affirmation of Thomas Trace, Esq., ¶¶ 5, 6, Exhibits C and D). On November 27, 2013, Claimant filed a Note of Issue and Certificate of Readiness. However, the Certificate of Readiness states that the action is not ready for trial and that further discovery is required.
In support of his motion and in opposition to Defendant's cross motion, Claimant asserts that he has undergone various medical procedures that have prevented him from filing the Note of Issue and Certificate of Readiness, including a hernia repair in February 2013 and other illnesses occurring in November 2013. Claimant asserts that he was scheduled to undergo a total knee replacement in December 2013, but that the procedure was cancelled due to his health condition (see Claimant's Opposition to Defendant's Cross-Motion, filed May 12, 2014). Claimant also attaches medical records from December 2013, which reveal that Claimant sought treatment for hematospermia, acute epididymitis and hematuria. Claimant also states that a prospective attorney declined to take his case around the time the Note of Issue was due. In opposition, Defendant argues that Claimant has failed to demonstrate a valid reason for an extension. In noting that "CPLR 3216 . . . is extremely forgiving of litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d at 503), and in acknowledging that medical procedures and illnesses can impede a pro se litigant from timely filing a Note of Issue and Certificate of Readiness, in light of the lack of any articulable prejudice to Defendant, the Court concludes that Claimant's motion should be granted, only insofar as the date by which a Note of Issue and Certificate of Readiness must be filed should be extended until December 31, 2014.
Nevertheless, the Note of Issue filed November 27, 2013 should be vacated pursuant to 22 NYCRR 202.21 (e) as Claimant is clearly not ready for trial (see Williams v C&M Auto Sales Corp., 105 AD3d 419, 419 [1st Dept 2013]).
Accordingly, it is hereby
ORDERED that Claimant's Motion No. M-84220 is granted to the extent that Claimant is granted an extension of time by which he is to serve and file his Note of Issue and Certificate of Readiness until December 31, 2014, and Claimant's failure to serve and file a Note of Issue and Certificate of Readiness by such date will be a basis for granting Defendant's motion to dismiss the Claim for Claimant's unreasonably neglecting to proceed; and it is further
ORDERED that the Note of Issue and Certificate or Readiness filed November 27, 2013 is hereby vacated; and it is further
ORDERED that Defendant's Cross Motion No. CM-85034 is held in abeyance until December 31, 2014.
June 20, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed July 10, 2009;
Answer, filed August 13, 2009;
Order, filed March 7, 2012;
Scheduling Order, dated September 11, 2012;
Revised Scheduling Order, dated May 23, 2013;
Claimant's Motion No. M-84220, Motion for Extension of Time to File Note of Issue/Statement of Readiness, filed October 22, 2013;
Affirmation of Thomas Trace, Esq., dated November 25, 2013;
Note of Issue and Certificate of Readiness, filed November 27, 2013;
Notice of Cross-Motion No. CM-85034, filed May 5, 2014;
Affirmation of Thomas Trace, Esq., dated May 5, 2014, with Exhibits A-D;
Claimant's Opposition to Defendant's Cross-Motion, filed May 12, 2014, with attachments consisting of four pages.