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rescinded the Memorandum of Transaction, indicating that the State decided to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
, 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,
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.
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
, 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
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