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
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.