New York State Court of Claims

New York State Court of Claims

GULLACE v. THE STATE OF NEW YORK, #2000-013-035, Claim No. 99796, Motion No. M-62152


Conditional order of dismissal entered for failure to respond fully to interrogatories. time to file appraisal extended until responses are served.

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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December , 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On Defendant's application, I issued an Order to Show Cause why Claimants should not be (1) precluded from offering evidence on the trial of this matter or (2) compelled to serve more complete interrogatory responses, and (3) why Defendant's time to file its appraisal should not be extended. The following papers were read on September 20, 2000 in connection with Defendant's application:
1. Order to Show Cause
2. Affidavit of Daniel L. Hallowell
3. Affirmation of Thomas G. Ramsay, Esq. and Annexed Exhibit
4. Letter dated September 20, 2000 from Karen Castner, Esq., to Court
5. Letter dated October 22, 2000 from Thomas G. Ramsay, Esq. to Court
6. Letter dated November 1, 2000 from Karen Castner, Esq., to Court
7. Letter dated November 24, 2000 from Thomas G. Ramsay, Esq. to Court
8. Defendant's First Set of Interrogatories

Claimants filed this appropriation claim on February 16, 1999. The appraisals were due to be filed on August 16, 1999. The parties have since extended the time for appraisals to be filed, first through an order issued by Presiding Judge Read, and later through stipulations that were so ordered by this Court (see, 22 NYCRR 206.22[g]). The last such extension expired on August 16, 2000.

One of the reasons, according to Defendant, for the delay in filing the appraisals has been Claimants' recalcitrance in responding to Defendant's interrogatories. In an affidavit submitted in support of the application for an Order to Show Cause, Defendant's general appraiser explained that he could not produce an appropriate appraisal without the information sought in those interrogatories.

Defendant served the interrogatories on July 14, 1999, but did not receive responses until July 17, 2000. The responses were not full and complete, nor were they verified. Accordingly, Defendant's counsel had a telephone conference with Claimants' counsel in an effort to secure more complete responses to the interrogatories. When Claimants failed to supplement the original interrogatory responses, Defendant made its application and I issued the Order to Show Cause.

On the September 20, 2000 return date, I received a facsimile letter from Claimants' counsel who acknowledged that the responses were not complete and asked for 30 days to supplement them. On October 24, 2000, I received a letter from the Assistant Attorney General advising me that Claimants' counsel had not served supplemental responses within the 30-day period. I subsequently received a letter from Claimants' counsel dated November 1, 2000, which stated that amended responses had been served upon the Attorney General. The letter revealed, however, that the amended responses were not verified and that Claimants were still gathering certain tax information that Defendant had requested for the years 1994 and 1995.

Claimants did not provide me with a copy of the amended interrogatory responses, nor did they file the amended response with the Clerk of the Court as required by the Uniform Rules for the Court of Claims (see, 22 NYCRR 206.5). Consequently, I have not had the opportunity to review the amended responses or to assess their completeness. On November 16, 2000, the Assistant Attorney General contacted my law clerk, advised him that the interrogatory responses were not satisfactory and asked to set up a telephone conference with Claimants' counsel to attempt to resolve the deficiencies. With the Assistant Attorney General on the line, my law clerk placed a call to Claimants' counsel's firm and left a message asking Claimants' counsel to call back so that a conference call could be arranged. My law clerk never received a return telephone call from Claimants' counsel. Later I received a letter from the Assistant Attorney General dated November 24, 2000. It tacitly acknowledged that certain of the amended responses were satisfactory but stated that others were not. Specifically, the Assistant Attorney General challenges the completeness of the following interrogatory responses: 11, 12, 13, 30, 32, 33, 35, 38, 40 and 41.[1] Claimants did not provide me with a response to Defendant's November 24, 2000 letter.

I agree with the Assistant Attorney General that the initial responses to the interrogatories listed above were not complete and adequate. I find that Claimants' failure to provide complete responses and to file copies of those complete responses with the Clerk of this Court as required by the rules was willful within the meaning of CPLR 3126. The requested information was relevant information which ought to have been disclosed. Defendant should not have to file its appraisal report until the responses are complete.

In light of the foregoing, it is

ORDERED, that within 30 days of service upon Claimants' counsel of a file-stamped copy of this Order, Claimants shall serve complete, verified responses to Defendant's interrogatories on the Attorney General and shall file a copy all of its interrogatory responses with the Clerk of this Court with proof of service; and it is further

ORDERED, that Defendant shall have 90 days from the date the amended responses are served and filed to file its appraisal report; and it is further

ORDERED, that should Claimants fail to comply with each of the aforesaid deadlines, the claim will be dismissed on the 31st day after service of this Order without further order of this Court.

December , 2000
Rochester, New York

Judge of the Court of Claims

Claimants' first interrogatory responses used numbers that did not correspond to Defendant's propounded interrogatories. For the purpose of this decision, I am using Defendant's numbering system.