New York State Court of Claims

New York State Court of Claims

SHETLER v. THE STATE OF NEW YORK, #2001-009-044, Claim No. 102774, Motion No. M-63601


Claimant's motion to strike defendant's answer was denied.

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:
BY: Michael G. Bersani, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Christopher Wiles, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 24, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made application for an order striking the answer of the defendant.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit, with Exhibits 1,2

Affirmation in Opposition, with Exhibits 3

Affidavit (Reply) 4

In this claim[1], claimant alleges negligence against the State and seeks damages for personal injuries allegedly suffered by him occurring during the time he attended a drug rehabilitation program at Willard Drug Treatment Center.

Claimant previously brought a motion (see Motion No. M-63055) returnable February 21, 2001, seeking an order to compel discovery, which was unopposed by the defendant. This Court granted a conditional preclusion order, dated April 23, 2001, and directed defendant to respond fully to claimant's notice for discovery and inspection within 30 days of the date of filing of said order. Claimant now seeks an order striking defendant's answer, based upon defendant's failure to fully comply with the conditional preclusion order.

As set forth in the motion papers, and in particular the exhibits attached thereto, it appears that defendant made an attempt to respond to the discovery demands, evidenced by correspondence dated April 9, 2001 (see Exhibit C to Items 1,2, which the Court notes was dated subsequent to the filing of claimant's motion to compel, but prior to issuance of this Court's conditional preclusion order). By letter dated April 16, 2001 (see Exhibit D to Items 1,2), claimant's attorney indicated to defendant that the response was insufficient. In this correspondence, claimant's attorney specified four specific discovery demands that remained outstanding. Claimant sought the name of the employee responsible for requiring claimant to participate in physical exercise and/or who granted or denied claimant admission into the "medical platoon" (Item No. 10); the names of all drill instructors who had claimant in their charge (Item No. 14); the name of the employee who signed the "Willard Drug Treatment Campus Treatment Plan" (Item No. 11); and the names of the two employees who signed the "Willard Treatment Assessment" (Item No. 13).

By correspondence dated May 17, 2001 (Exhibit E to Items 1,2 and apparently in response to this Court's conditional preclusion order), the Assistant Attorney General provided responses to Item No. 11 and Item No. 13, and indicated that he was attempting to obtain the names of the various drill instructors requested in Item 14.

In his affidavit in support of this motion (see Item No. 2), claimant's attorney indicates that defendant has not responded to Item No. 10, and has not provided a complete response to Item No. 14.

In his answering affirmation, the Assistant Attorney General contends that Item No. 10 was fully responded to, based upon the medical records submitted to claimant with defendant's May 17, 2001 correspondence. Defendant's attorney further contends that defendant, to date, is unable to respond to demand No. 14, (which requests the names of all drill instructors who instructed claimant during the time that he was in attendance), but has been unable to do so based upon the sheer number of different drill instructors working at the facility during this time.

With these facts as a background, it appears that defendant, although it has not fully complied with the conditional preclusion order dated April 23, 2001, has made a good faith effort to do so. It appears that defendant has fully responded to three of the four demands at issue, and is currently attempting to obtain information which would allow it to provide a complete response to the fourth demand.

An order striking the answer of a defendant is a drastic remedy, and should be utilized only when there is a clear showing that the failure to comply with the Court's order is willful, contumacious, or in bad faith (Forman v Jamesway Corporation, 175 AD2d 514). In this case, it is clear that there has been some effort on the part of the defendant to comply with the previous order compelling disclosure. There is certainly no indication that the failure to fully respond was willful on the part of the defendant, or that defendant was or is intentionally stonewalling discovery. Therefore, this Court will not strike defendant's answer.

The Court notes that subsequent to the motion practice which was instituted in this claim pertaining to discovery, a new rule has been implemented in the Court of Claims, which requires that counsel for the respective parties first confer with the assigned Judge prior to bringing any motion relating to disclosure (see, Uniform Rules for the Court of Claims, § 206.8[b]). If the parties are unable to resolve any remaining discovery issues, (which appear to be limited to the defendant furnishing the names of drill instructors assigned to the facility while claimant was an attendee), counsel for the parties may want to avail themselves of the opportunity to request a conference with the Court, in the hopes that any such issue can be resolved without resorting to formal judicial intervention.

Accordingly, it is

ORDERED, that Motion No. M-63601 is hereby DENIED.

September 24, 2001
Syracuse, New York

Judge of the Court of Claims

[1] By a prior order, this Court permitted the late service and filing of the claim pursuant to Court of Claims Act, 10(6). See Decision and Order to Motion No. M-61073, dated June 20, 2000.