Opinion
# 2012-048-059 Claim No. 118905-A Claim No. 119766-A Motion No. M-81613 Motion No. M-81661
08-27-2012
GRAY v. STATE OF NEW YORK
Synopsis
The Court granted Defendant's motion dismiss the Claim based on another action pending. The Court also denied Claimant's motion to consolidate the two Claims. Case information
UID: 2012-048-059 Claimant(s): PAUL GRAY Claimant short name: GRAY Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118905-A, 119766-A Motion number(s): M-81613, M-81661 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: PAUL GRAY, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Joan Matalavage, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: August 27, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Paul Gray filed Claim number 118905-A on September 7, 2010, seeking to recover damages for personal injuries he sustained as a result of the alleged negligence and medical malpractice of Defendant while an inmate at Eastern Correctional Facility in Napanoch, Ulster County, under the supervision of the Department of Correctional Services "DOCS"). Specifically, in Claim number 118905-A, Claimant alleges that, on December 11, 2009, he underwent a bunionectomy on his right foot and, in contravention of doctor's orders that he remain non-weight bearing, upon his return to Eastern Correctional Facility, Claimant was made to stand and walk. Claimant further alleges that stitches were removed from his right foot on December 21, 2009 with unsterilized equipment, and that Defendant failed to timely provide him with physical therapy (see Claim, filed September 7, 2010). Of note is that the allegations in Claim 118905-A are also encompassed in Claim 119766-A, filed by Claimant on April 22, 2011. In a prior Decision and Order relating to Claim 119766-A, the Court denied Claimant's motion seeking leave to amend his Claim (see Gray v State of New York, UID No. 2012-048-031 [Ct Cl, Bruening, J., March 5, 2012]). However, thereafter, on May 4, 2012, Claimant filed an Amended Claim with respect to Claim 118905-A. Defendant now moves pursuant to CPLR 3211 (a) (4) and 3025 seeking dismissal of the Amended Claim with respect to Claim 118905-A on the grounds that there is another action pending seeking the same relief, and because Claimant did not obtain the requisite leave of Court to file and serve the Amended Claim. Claimant opposes Defendant's motion and also moves to consolidate Claims 118905-A and 119766-A. Claimant asserts that he filed the Amended Claim in compliance with the Court's prior Order and that the issuance of the two Claim numbers was a clerical error.
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.
The Amended Claim states that it is "filed pursuant to the Decision and Order of the Court of Claims Honorable Glen T. Bruening" (Amended Claim, filed May 4, 2012).
The Court notes that the Claim bearing the Clerk's filing stamp number 119766-A also bears the type written Claim number 118905-A to the right of the caption. It appears that a proposed Claim that was made part of a prior motion seeking late Claim relief (see Gray v State of New York, Motion No. M-78780, Lack, J. [Dec. 21, 2010]) was filed and issued Claim number 118905-A. Claim number 119766-A was filed by Claimant after he was granted late Claim relief.
When separate actions involve a common question of law or fact, a court may, in its discretion, "order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay" (CPLR 602 [a]). However, a review of Claim 118905-A and Claim 119766-A does not reveal "common" questions of law or fact. Rather, these two Claims involve the same questions of law or fact, and consolidation of the two actions is inappropriate.
CPLR 3211(a) (4) provides that a court may dismiss an action on the ground that "there is another action pending between the same parties for the same cause of action in a court of any state." Claim 119766-A - the later filed Claim - arises out of the same facts that are alleged in Claim 118905-A. While Claim 119766-A asserts on-going suffering and makes additional demands for relief (see Claim, filed April 22, 2011), the two pending actions are between the same parties, seeking essentially the same relief. Since Claim 119766-A appears to be more thorough and was filed after Claimant was granted late Claim relief, the Court, in its discretion, concludes that Claim 118905-A - the earlier filed Claim - should be dismissed (see e.g. Matter of Cliff v Mayo, 271 AD2d 763, 764 [3d Dept 2000]).
Finally, notwithstanding Claimant's contention, the Court's Decision and Order, filed March 29, 2012 with respect to Claim 119766-A, did not permit Claimant to file and serve an Amended Claim. Rather, that Decision and Order denied Claimant's motion to file an Amended Claim without prejudice to Claimant to re-file the Motion upon proper papers (see Gray v State of New York, UID No. 2012-048-031 [Ct Cl, Bruening, J., March 5, 2012]).
Accordingly, Defendant's Motion No. M-81613 is granted and the Claim 118905-A is dismissed. Claimant's Motion No. M-81661 is denied.
August 27, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim 118905-A, filed September 7, 2010; Claim 119766-A , filed April 22, 2011; Amended Claim 118905-A, filed May 4, 2012; Notice of Motion, filed May 16, 2012; Affidavit of Joan Matalavage, Esq., sworn to on May 16, 2012, with Exhibits A-B; Notice of Motion, filed May 29, 2012; Document entitled "Claim" submitted in opposition to Defendant's Motion, sworn to on May 22, 2010 and verified on May 22, 2012, with Exhibits A, A-1 and B; Affidavit of Joan Matalavage, Esq., sworn to on June 5, 2012.