New York State Court of Claims

New York State Court of Claims

HART v. STATE OF NEW YORK, #2000-018-012, Claim No. 99226, Motion No. M-61316


Synopsis


Order to Show Cause seeking an order of preclusion for the failure of claimant to appear for a deposition dismissed as moot. Parties completed depositions.

Case Information

UID:
2000-018-012
Claimant(s):
MICHAEL HART
Claimant short name:
HART
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99226
Motion number(s):
M-61316
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ANDREW PLASSE, ESQUIRE
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
By: PATRICIA M. BORDONARO, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 9, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Defendant has brought this Order to Show Cause to dismiss the claim for failure to comply with an order for discovery. The court has considered the following documents:

Order to Show Cause.....................................................................................1


Affirmation of Patricia M. Bordonaro, Esquire, in support

with all exhibits attached thereto....................................................................2


Answering Affirmation of Andrew F. Plasse, Esquire,

in opposition ...................................................................................................3



The claim filed on October 30, 1998, seeks damages for injuries sustained as a result of the State's negligence when a large sheet of tempered glass fell on claimant's foot at Midstate Correctional Facility. An Answer was filed on December 10, 1998.

By Order of Honorable Thomas J. McNamara, dated January 22, 1999 the parties were directed to complete disclosure in this matter and file a Note of Issue on or before July 22, 1999. On October 18, 1999 a telephone conference was held with counsel and an order was made directing that the defendant would depose claimant at the offices of the Attorney General in Syracuse on November 16, 1999.

Defendant by this motion asserts that claimant and his counsel failed to appear at the scheduled time for the court-ordered deposition. As a result defendant seeks dismissal of the claim based upon CPLR 3211, 3212, 3216(a) 3124 and 3126. It is requested that an order precluding claimant from offering his testimony at trial and thereafter dismissing the claim with prejudice be granted.

Claimant in opposition points out that the relief requested is unavailable under 3211 and 3212 and that defendant failed to comply with the demand required by 3216(b)(3). Claimant further argues that he notified defendant on November 10 and November 12, 1999 by telephone message that he and his client would not be present for the court-ordered deposition because he was trial ordered in a jury trial in New York City Civil Court on the scheduled date. Claimant further argues that he followed up with a letter advising the same.

Oral argument was presented on the motion on March 20, 2000.

Claimant's attorney proposed by letter that defendant depose his client on February 18, 2000, the date on which both claimant and his attorney were scheduled to appear in Syracuse, New York, for a deposition in another case involving the same parties pursuant to a preclusion order. (Claim number 96111, Motion number M-60895.) Ms. Bordonaro had a previously scheduled deposition out of town on that date, but due to the weather, it was canceled. She indicated at oral argument that she was not prepared to depose the claimant on that date.

CPLR 3126 provides the penalties for refusal to comply with an order to disclose. Among the remedies available to the Court pursuant to that section are issuing: an order deeming the issues for which the failure to disclose are relevant resolved in favor of the party seeking compliance; or an order of preclusion; or an order striking parts of, or the entire pleading of the disobeying party, staying the action until there is compliance or dismissing the action. (CPLR 3126 (1)-(3))

Although claimant's counsel has not diligently pursued this claim and has failed to comply with scheduling orders of this Court, his failure to attend the court ordered deposition on November 16, 1999 was excusable. Defense counsel failed to take advantage of the change in her schedule on February 18, 2000 and depose claimant at that time. The Court will not allow further delays in this matter. The Court however is reluctant to penalize claimant at this time for the conduct of his counsel and the failure of the defense counsel.

Since the deposition has been completed, the motion is hereby DENIED.

A note of issue must be filed with the Clerk of the Court by May 26, 2000.






May 9, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims