New York State Court of Claims

New York State Court of Claims

MARRIA v. THE STATE OF NEW YORK, #2000-009-427, Claim No. 93918, Motion No. M-61908


Claimant's motion seeking permission to have his expert granting him access to Watertown Correctional Facility for the purpose of examining the premises, subsequent to the service and filing of a note of issue, was granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Nicholas V. Midey, Jr.
Claimant's attorney:
BY: Sitro De La Cruz, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
September 12, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order to compel pursuant to CPLR Rule 3124. Specifically, claimant seeks an order granting claimant's expert access to Watertown Correctional Facility, for the purpose of examining the premises, as well as to take photographs and measurements, in preparation of the trial of this claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Affirmation in Opposition, with Exhibits 3

Reply Affirmation 4

By his claim, claimant alleges that on July 16, 1995, while he was incarcerated at Watertown Correctional Facility, he suffered serious injuries, allegedly as a result of the State's negligence, while he was working in the kitchen area of the facility. The claim was filed on April 29, 1996.

A note of issue and certificate of readiness was filed on April 1, 1999. Following a calendar call and conference with counsel for both parties on September 30, 1999, a date certain for the trial of the liability portion of this claim was scheduled to commence on May 24, 2000.

Within two months of the scheduled trial date, claimant discharged his attorneys and retained new counsel to represent him in this claim. Apparently after a review of the file, claimant's newly retained counsel contacted the Court and requested an adjournment of the trial. This request was based on the finding by new counsel that claimant's former counsel had not made arrangements to retain an expert. In the opinion of claimant's new attorney, expert testimony would be critical in establishing this claim at trial.

This Court is generally reluctant to grant a request for an adjournment of a previously scheduled trial based solely upon a substitution of attorneys. As set forth above, however, the Court did grant the request made in this claim. A new trial date has not as yet been scheduled.

Claimant's counsel then requested permission from defendant granting their expert access to Watertown Correctional Facility so that the expert could examine the premises. This request was denied by defendant, and this motion to compel ensued.

CPLR § 3120(a)(1)(ii) authorizes a party to serve a discovery notice "to permit entry upon designated land or other property in the possession, custody or control of the party served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon." Defendant, therefore, correctly contends that claimant's request to examine and inspect areas of the Watertown Correctional Facility amounts to a request for additional discovery under CPLR § 3120(a)(1)(ii), and that claimant is not entitled to such additional discovery since his note of issue and certificate of readiness had been previously filed on April 1, 1999.

Section 206.12(c) of the Uniform Rules for the Court of Claims authorizes a judge, upon motion supported by affidavit, to grant permission to conduct additional pretrial proceedings when "unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice".

Claimant concedes that a change of attorneys is not, in and of itself, a sufficient basis for requesting discovery after the filing of a note of issue (see, Baranyk v Baranyk, 73 AD2d 1004). Claimant's new attorney, however, has apparently determined that expert testimony will be necessary in order for claimant to properly present his claim at trial, and that the requested examination of Watertown Correctional Facility by claimant's expert is needed so that his expert can adequately prepare for such testimony.

Without this opportunity to examine the premises at Watertown Correctional Facility, the testimony of claimant's expert could very well be rendered meaningless, and as a result claimant could be substantially prejudiced in presenting his case at trial. Moreover, the opportunity to examine the premises amounts to a very limited re-opening of the discovery process, which should not create any undue delay in the rescheduling of this matter for trial. Obviously, claimant's expert has no other option available to him since the Watertown Correctional Facility is under the exclusive care, custody and control of the defendant. Furthermore, the Court notes that since this matter has not yet been rescheduled for trial, granting this motion permitting an examination of the premises will cause no further disruption in the Court's calendar.

In the discretion of the Court, therefore, and in order to avoid substantial prejudice to the claimant in both trial preparation and at trial, claimant's motion is hereby GRANTED.

Accordingly, it is

ORDERED, that defendant shall grant to claimant's expert access to the premises of Watertown Correctional Facility for the purpose of conducting an examination of said premises, including the taking of photographs and measurements. Such examination shall be conducted on a mutually convenient date within 45 days of receipt of a filed-stamped copy of this order. Upon the completion of such inspection and examination, claimant's counsel is to notify the Court in writing, and the claim will then be scheduled for a calendar call and conference at which a new trial date will be determined.

September 12, 2000
Syracuse, New York

Judge of the Court of Claims