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
combined demand and that considerable discovery remains outstanding, including
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
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.