Opinion
# 2017-015-260 Claim No. 111990 Motion No. M-90473
09-13-2017
BENJAMIN SWEENEY AND BARBARA SWEENEY v. THE STATE OF NEW YORK
Bosman Law Firm, LLC A.J. Bosman, Esq. By: No Appearance Honorable Eric T. Schneiderman, Attorney General By: G. Lawrence Dillon Assistant Attorney General
Synopsis
Defendant's motion to strike the note of issue was granted.
Case information
| UID: | 2017-015-260 |
| Claimant(s): | BENJAMIN SWEENEY AND BARBARA SWEENEY |
| Claimant short name: | SWEENEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 111990 |
| Motion number(s): | M-90473 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Bosman Law Firm, LLC A.J. Bosman, Esq. By: No Appearance |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: G. Lawrence Dillon Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 13, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to strike the note of issue pursuant to § 206.12 (d) of the Uniform Rules For The Court Of Claims [22 NYCRR]).
Claimants, owners of a dairy farm in Boonville, New York, commenced this action in 2006 after their water supply was allegedly contaminated by the State's use of salt on the surface of Route 26, rather than sand or gravel as was its prior practice. They seek damages for the death of their cows and personal injuries they allegedly sustained as a result of the contamination. The prosecution of the claim has proceeded slowly. Claimants' former attorney was suspended from the practice of law and their current counsel permitted the claim to languish for years before filing an order to show cause directing claimants' former counsel to show why the claimants' file should not be provided to their current counsel. In response, claimants' former counsel represented to the Court that he has been unable to locate the claimants' file in this matter. Thereafter, on February 17, 2017 the Court served claimants' counsel with a demand to resume prosecution of the action and serve and file a note of issue placing the action upon the trial calendar within 90 days. The note of issue and certificate of readiness for trial was served and filed on May 2, 2017.
In support of defendant's motion to strike the note of issue, defense counsel avers that examinations before trial have not been completed and claimant failed to provide a response to its demand for expert witness disclosure.
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 following service of the note of issue. Contrary to the representations made in claimants' certificate of readiness, defendant established that not all discovery has been completed inasmuch as examinations before trial remain outstanding. A material fact in the certificate of readiness being incorrect, and there being no opposition to the motion, it is hereby
ORDERED, that the 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.
September 13, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated May 19, 2017;
2. Affirmation by defendant dated May 19, 2017, with Exhibits A-D.