New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2001-009-031, Claim No. 99666, Motion No. M-63016


Synopsis


Claimant's motion for preclusion and summary judgment was granted in part, in that the State was directed to provide certain records and expert witness disclosure.

Case Information

UID:
2001-009-031
Claimant(s):
FREDERICK R. RUSSELL, as Administrator of the ESTATE OF JILL CATHERINE CAHILL, Deceased
Claimant short name:
RUSSELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99666
Motion number(s):
M-63016
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
WILLIAM FRANCIS LYNN
BY: Thomas F. Shannon, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Winthrop H. Thurlow, Esq.,
Assistant Attorney Generalof Counsel.
Third-party defendant's attorney:

Signature date:
July 11, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brought this motion, originally returnable February 9, 2001, seeking an order precluding the defendant from submitting into evidence certain documents or items; striking defendant's answer; granting a judgment by default against the State and/or granting claimant summary judgment on all issues of liability; sanctioning the defendant and its attorneys; and precluding defendant from offering expert testimony at trial.

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


Affidavit in Response 4


Supplemental Affirmation 5


Second Supplemental Affirmation, with Exhibits 6


Affidavit in Opposition 7


Affidavit of Winthrop H. Thurlow, Esq., and Exhibits (Occurrence Reports) 8


Reply Affirmation 9

On February 9, 2001, the scheduled return date of this motion, the Court conducted a conference with counsel for the parties, in an effort to identify and narrow the outstanding issues in this motion.

Subsequently, and at the Court's direction, claimant's counsel submitted a "Supplemental Affirmation" (see Item No. 5) identifying those outstanding, disputed issues. In this affirmation, claimant's counsel requested the production of "occurrence reports" regarding criminal activity that occurred on the SUNY Health Science Center campus on 1997 and 1998, additional staffing schedules, roll call logs, and daily reports from security personnel.

In the conference on February 9, 2001, the Court determined that the only occurrence reports relevant to this claim were those containing elements of violence or personal injury. The Court notes that in his "Supplemental Affirmation", claimant's counsel limited his request to these types of occurrence reports.

Since the State did not provide a response to these renewed demands, as directed by the Court in the conference held on February 9, 2001, this Court scheduled oral argument on all aspects of this motion for July 9, 2001.

Subsequent to the scheduling of this oral argument, the State provided copies of occurrence reports. Additionally, claimant filed a note of issue and certificate of readiness on June 25, 2001, pursuant to a directive from the Court given at the February 9, 2001 conference.

At oral argument on July 9, 2001, claimant's counsel acknowledged receipt of the copies of the occurrence reports. Claimant's counsel, however, renewed his request for staffing schedules, roll call logs, and daily reports, and also requested expert witness disclosure, which was to have been previously provided by the defendant. Defendant's counsel responded that despite a diligent and thorough search of the State's records, the State was unable to locate any staffing schedules, roll call logs, or daily reports other than what had been previously provided.

Therefore, notwithstanding the fact that claimant has served and filed a note of issue and certificate of readiness, based upon the foregoing and the statements made at oral argument, it is

ORDERED, that by July 30, 2001, the State shall provide to the claimant any and all staffing schedules, roll call logs, and daily reports from security personnel for the period from April 20, 1998 through October 28, 1998, and if the State cannot locate any such documents, the State must provide an affidavit from someone in authority that such documents can no longer be found; and it is further

ORDERED, that the State shall be precluded from offering into evidence at the time of trial any such staffing schedules, roll call logs, or daily reports other than those documents which have been previously provided, or are provided pursuant to this order; and it is further

ORDERED, that the State shall provide expert witness disclosure in accordance with CPLR § 3101(d)(1)(i) by July 30, 2001; and it is further

ORDERED, that in all other aspects, claimant's Motion No. M-63016 is hereby DENIED.


July 11, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims