New York State Court of Claims

New York State Court of Claims

DOZIER v. THE STATE OF NEW YORK, #2000-001-008, Claim No. 94122, Motion No. M-60405


Synopsis


Defendant's motion is granted insofar as: 1) the note of issue dated September 17, 1999 is striken; 2) deadline for completion of outstanding discovery is June 30, 2000; and 3) trial is scheduled for September 6, 2000.

Case Information

UID:
2000-001-008
Claimant(s):
DAVID DOZIER
Claimant short name:
DOZIER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court of Claims does not have jurisdiction to adjudicate claims against individuals (see, Smith v State of New York, 72 AD2d 937), nor does it have jurisdiction over governmental agencies as entities distinct from the State of New York (see, Court of Claims Act § 9). Thus, the Court sua sponte dismisses the claims against named defendants "New York State Interagency Pool, Sarah Leon, Pedro Quinones and the New York State Office of Mental Retardation and Developmental Disabilities" and amends the claim's caption to delete these named defendants from it.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94122
Motion number(s):
M-60405
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Michael N. David, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Anne Pavlides, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 7, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion for an order pursuant to CPLR 3402, vacating the note of issue and dismissing the claim or compelling disclosure: Notice of Motion, dated September 27, 1999 and filed September 29, 1999; and Affirmation in Support of Anne Pavlides, dated September 27, 1999 and filed September 29, 1999, with annexed Exhibits A-H; Affirmation in Opposition of Michael N. David, dated January 3, 1999 [sic] and filed January 4, 2000; and Affirmation in Reply of Anne Pavlides, dated January 5, 2000 and filed January 7, 2000, with annexed Exhibit A.



This claim seeks recovery for personal injuries allegedly sustained in an automobile accident occurring on March 3, 1996 when a vehicle operated by Pedro Quinones, in which David Dozier ("claimant") was a passenger, was struck from behind by a vehicle operated by Sarah Leon and owned and maintained by the New York State Interagency Pool and/or the New York State Office of Mental Retardation and Developmental Disabilities (Affirmation in Support of Anne Pavlides, dated September 27, 1999 and filed September 29, 1999 ["Pavlides Aff."], Exhibit A). By this motion, defendant State of New York ("defendant") seeks an order striking the Note of Issue and dismissing the claim or compelling the requested discovery.

Defendant's answer, a demand for a bill of particulars and a combined demand were served on June 25, 1996; claimant's bill of particulars was served on defendant at a preliminary conference held on October 28, 1998 (Pavlides Aff., ¶¶ 5, 6, Exhibits B, C, D & E). No preliminary conference order was entered into at that time and the conference was adjourned five times over the next several months, with claimant repeatedly pledging and then failing to provide medical records/authorizations and other discovery requested by defendant (Pavlides Aff., ¶¶ 7-12). On September 17, 1999, claimant nonetheless filed a Note of Issue and a Certificate of Readiness affirming that all discovery was complete and that the action was ready for trial (Pavlides Aff., Exhibit H) in order to avoid dismissal pursuant to CPLR 3216 (b) (Pavlides Aff., ¶ 13, Exhibit G).




In this motion, defendant alleges that claimant has never adequately complied with its

combined demand and that considerable discovery remains outstanding, including depositions

and physical examinations. According to defendant, the requested discovery is necessary in order to defend or move to dismiss the claim. While claimant disputes defendant's portrayal of discovery neglect, his protestations of rectitude are severely undercut by a history of missed conferences and the belated disclosure of medical and no-fault authorizations and medical reports long requested by defendant.

The Court encourages the parties to resolve any remaining discovery disputes on their own, and notes its strong agreement with the proposition that "[a] refusal to work out a deposition is a high form of discourtesy" (Siegel, NY Prac § 351, at 508 [2d ed]). In the event good faith efforts prove unavailing, the aggrieved party is directed to notify Principal Court Attorney William E. Dertinger (212-775-0100; ext. 41), who will work with the parties to resolve differences. The Court also reminds claimant of the severe consequences that may flow from failure to comply with court-ordered discovery (see, Kihl v Pfeffer, 94 NY2d 118).
Based on the foregoing, the Court grants defendant's motion insofar as to (1) strike the Note of Issue and Certificate of Readiness filed on September 17, 1999; (2) set a deadline of June 30, 2000 for completion of any remaining outstanding discovery requested by defendant, including but not limited to depositions and physical examinations; and (3) schedule the claim for trial on both liability and damages on Wednesday, September 6, 2000 at 10:00 at Five World Trade



Center, 8th Floor, Courtroom C, New York City, New York. This date is firm; the parties are referred to 22 NYCRR 206.15 and 22 NYCRR 206.17.

April 7, 2000


Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims