Defendant's motion to strike the note of issue was denied as defendant failed to support its motion with a copy of its discovery demand it contended remained outstanding and, in any event, the demand was served after the note of issue and certificate of readiness were filed.
|Claimant short name:||MYERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Michael Myers, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Albert D. DiGiacomo, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 9, 2021|
|See also (multicaptioned case)|
The defendant moves to strike the note of issue on the ground discovery is incomplete.
The claim, filed on September 15, 2020, seeks $48.49 for the loss of an X-gamer Portable gaming system. A preliminary conference order dated December 18, 2020 required the completion of discovery and filing of the Note of Issue on or before June 18, 2021. The parties consented to participating in the Alternative Dispute Resolution program which surprisingly failed to result in a settlement, notwithstanding the relatively small amount of damages being requested in the claim. The Note of Issue and Certificate of Readiness for Trial was served on May 11, 2021and filed on May 14, 2021. Thereafter, defendant served its discovery demands and now moves to strike the Note of Issue on the ground claimant's response to his discovery demands, served after the note of issue was filed and served, is improper.
A party may move to strike the Note of Issue within 20 days after service of the Note of Issue and Certificate of Readiness for Trial 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]).
Defense counsel failed to support the motion with a copy of defendant's discovery demand, nor did he identify the particular information which the claimant had failed to provide. Only in his reply affirmation does counsel set forth the specific demand to which a response remains outstanding:
"Defendant has demanded evidence of current market value of his personal property alleged to be destroyed as well as evidence of damages. Claimant has not submitted any evidence of his damages or the current market value of a used and physically damaged x-gamer" (reply affirmation, ¶ 5).
Claimant's damages claim in the amount of $48.49 is set forth in the claim, claimant states that he has already provided defendant a copy of his sales receipt and there is no requirement that the claimant provide information regarding "the current market value of a used and physically damaged x-gamer" (id.).
A review of the certificate of readiness in this matter indicates that it was correct at the time it was served and filed and is in compliance with the requirements of § 206.12.
As a result, defendant's motion must be denied.Accordingly, defendant's motion is denied.
August 9, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of motion dated May 28, 2021;
2. Affirmation in support dated May 28, 2021, with Exhibits A and B;
3. Claimant's response dated June 1, 2021;
4. Reply affirmation dated July 8, 2021, with Exhibit A.