New York State Court of Claims

New York State Court of Claims

SCHEIDEL v. THE STATE OF NEW YORK, #2000-009-448, Claim No. 96165, Motion No. M-62239


Claimant's motion to compel denied without prejudice to renew.

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: Neil M. Gingold, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Winthrop H. Thurlow, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
December 13, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion for an order compelling defendant to comply with a previously served Notice to Produce and two notices for depositions. Alternatively, claimant seeks an order resolving all disputed issues in favor of the claimant, prohibiting defendant from producing in evidence the items sought in the Notice to Produce, striking defendant's answer, or granting claimant a default judgment. Claimant also seeks an order awarding him attorney fees for the legal services associated with bringing this motion, as well as sanctions against the defendant.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, Affirmation Certifying Good Faith Effort, with Exhibits A-M 1,2,3

On or about August 20, 1996, a parcel of land consisting of approximately 315 acres located in the Town of Camillus, Onondaga County, was offered for sale at public auction, at which claimant was the approved high bidder. Evidence of the sale was contained in a Memorandum of Transaction dated that same day. Subsequently, on or about December 11, 1996, the Office of General Services rescinded the Memorandum of Transaction, indicating that the State decided to withhold the property from sale pending review of a previously completed environmental assessment. A claim was subsequently served and filed seeking damages for breach of contract, tortious interference with contract, negligence, misrepresentation, and interference with prospective advantage.

This Court issued an order[1], dated March 26, 1998, compelling defendant to produce certain documents, and if any such documents were withheld, to specify its reason for withholding production.

Thereafter, by an order dated December 24, 1998,[2] this Court dismissed the causes of action sounding in breach of contract and tortious interference with contract, but retained the causes of action sounding in negligence, misrepresentation, and interference with prospective advantage, pending further discovery. In this order, the Court also granted to the defendant an extension of 60 days to comply with the prior order of this Court pertaining to discovery.

Further orders of this Court were entered extending the time for defendant to comply with the discovery requests of claimant. In compliance with one of the scheduling orders, claimant filed a note of issue on February 2, 2000. Claimant, however, apparently wished to obtain additional disclosure and therefore brought a motion to strike the note of issue that he had previously filed. This motion was not opposed by defendant, and the note of issue was stricken by an order dated May 4, 2000.[3] The most recent scheduling order, made following a conference on June 1, 2000, requires, inter alia, a note of issue and certificate of readiness to be served and filed on or before March 1, 2001.

Subsequent to the conference with the Court on June 1, 2000, counsel for the parties exchanged correspondence pertaining to outstanding discovery issues (see Exhibits H-M to the moving papers herein). Claimant was obviously dissatisfied with the response made by the State (Exhibit L) and brought the instant motion, seeking to compel compliance with his First Notice for Production of Documents dated July 7, 1997, the Notice to Take Deposition Upon Oral Examination of John Clancy, dated June 16, 1998, and the Notice to Take Deposition Upon Oral Examination of Donald J. Leopold, dated January 22, 1998.

At the outset, the Court is most troubled by the failure of defendant to submit a response to this motion. The only documentation from the defendant before the Court addressing the issues raised herein to any extent is the disclosure made by defendant with its correspondence to claimant's counsel of August 4, 2000. Reliance, if any, upon this correspondence as a response to the within motion is clearly misplaced, since it does not respond to all of the issues raised by claimant in his motion, and the motion in fact was brought subsequent to the disclosure of August 4, 2000. Furthermore, this Court cannot comprehend how defendant could ignore a motion that seeks to recover legal fees and costs, as well as an order imposing sanctions upon the defendant. Both the claimant and the Court deserve attention to this matter.

Nevertheless, a review of the papers before the Court on this motion, as well as the history of this claim, reveals that the First Notice for Production of Documents was the subject of a prior motion before this Court[4], and it was the understanding of this Court, based upon conferences with counsel subsequent to said motion, that all disputes regarding the disclosure of materials sought therein had been resolved.

Furthermore, the depositions of John Clancy and Donald J. Leopold have already been conducted, although claimant seeks the production of certain documents and materials purportedly promised to him during the course of these depositions.

As set forth in the various correspondence from claimant's counsel, claimant seeks the production of those documents supposedly promised to him in the two depositions. He apparently remains dissatisfied with the responses made to his first notice for production of documents, and seeks additional documentation and information pursuant to said notice. Finally, claimant seeks to depose additional witnesses.

In its response dated August 4, 2000 (Exhibit L), the Court believes that defendant has made a sincere attempt to respond to the demands made by claimant. Having stated this, however, the Court is still not convinced that full and complete disclosure has been made. Furthermore, defendant has not fully responded to claimant's request for additional depositions, and it has not complied with claimant's request (nor has it rejected such request) for documents emanating from the two previously held depositions. Claimant therefore may be entitled to additional disclosure and/or depositions.

It is apparent to this Court that prior to the issuance of any order compelling additional disclosure (or granting the alternative remedies requested by claimant) a conference should be held with the Court to discuss and hopefully resolve these outstanding issues. At this conference, it is expected that claimant's demands will be presented with specificity, so that proper and full responses can be obtained from defendant. The Court further expects that a scheduling order, if any, resulting from this conference shall enable the parties to complete all disclosure within the confines of the Court's prior deadline of March 1, 2001 for the filing of the note of issue in this claim.

Accordingly, by a separate notice already provided to counsel for both parties, the Court has scheduled a conference for December 19, 2000, at 11:00 a.m., to address, with particularity, all outstanding discovery issues. Claimant may then renew his application for the relief sought herein if this conference does not produce, in his opinion, satisfactory results.

Accordingly, it is

ORDERED, that claimant's Motion No. M-62239 is hereby DENIED, without prejudice.

December 13, 2000
Syracuse, New York

Judge of the Court of Claims

[1]See Motion No. M-56800.
[2] See Motion No. M-58021 and Cross-Motion No. CM-58354.
[3] See Motion No. M-61474.
[4] See Motion No. M-56800.