James Buckley as the attorney-in-fact for KRESANDRA ROSE BUCKLEY and JAMES & MELODEE BUCKLEY, Claimants,
State of New York and SUNY POTSDAM, Defendants.
For Claimants: THE ROTHSCHILD LAW FIRM, P.C., MARTIN J. ROTHSCHILD, ESQ.
For Defendants: HON. ANDREW M. CUOMO Attorney General of the State of New York, G. LAWRENCE DILLON, ESQ. Assistant Attorney General
Norman I. Siegel, J.
Defendant  moves to strike the Note of Issue in this personal injury negligence claim. It is alleged that claimant was injured while diving into a swimming pool at the SUNY Potsdam campus in January, 2009. The defendant was served with the claim on February 5, 2009 and the exchange of pleadings and discovery ensued; thereafter, on June 26, 2009 the Note of Issue was filed and this motion ensued.
Defense counsel's affirmation states that:
[t]he employees' [sic] status of the lifeguards was discovered in early June 2009. They were employees of the Student Government Association that has insurance coverage with SUNY Potsdam. The State Defendant upon learning of this insurance coverage, sought to have the carrier indemnify and defend the State in the action. On July 10, 2009 the carrier disclaimed coverage and represented to the undersigned's investigator in Watertown that they would not defend nor indemnify the State.
Accordingly, a motion will be brought pursuant to CPLR §3001 and Article [sic] 9 of the Court of Claims Act to see [sic] a declaratory judgment against the carrier for bad faith refusal to defend and indemnify the State.
Counsel goes on to state that "this case cannot proceed since necessary parties, to wit, the lifeguards, have not been joined in the action," and further that these additional parties will be entitled to conduct their own discovery. Counsel argues that the State will be prejudiced if the matter proceeds to trial without the involvement of the carrier.
Claimants oppose the motion to strike the Note of Issue, and asserts that the facts, including excerpts from deposition transcripts, support the conclusion that lifeguards were "hired, trained, monitored, supervised and controlled" by the defendant and that the Student Government Association was merely a "payment agent" for the State.
Claimants' counsel asserts that in any event, there would never be additional parties in this matter, as the State is the only proper defendant in the Court of Claims. And further, if the State were to commence a declaratory judgment action, the issue would be coverage only. Claimants' counsel also states, and it is not disputed by the defendant, that the insurance carrier for the Student Government Association retained counsel, and while the carrier has denied coverage, its counsel attended the depositions of the lifeguards.
Claimants' position is that all disclosure is complete, that claimants' day in court should not be delayed, and that the carrier issue has no impact upon the liability phase of the trial (which presumably would be bifurcated).
The Uniform Rules for Trial Courts (22 NYCRR) § 206.12 (d) provides, in relevant part:
[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect.
The section of the rules sets forth the only basis upon which the court shall strike the note of issue. In this case, there is no showing that a material fact in the certificate of readiness is incorrect, nor is there a showing that the case, insofar as the named defendant is concerned, is not ready for trial. Rather, it is defendant's contention that there are ...