New York State Court of Claims

New York State Court of Claims

QUACKENBUSH v. THE STATE OF NEW YORK, #2001-013-010, Claim No. 95363, Motion No. M-63317


Defendant is entitled to additional discovery prior to the trial of damages, even though a Note of Issue has been filed, because there has been a significant change in Claimant's medical condition and because the trial will not be delayed, nor will Claimant be prejudiced in any other fashion.

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: EDWARD F. McARDLE, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 25, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On April 18, 2001, the following papers were read on Defendant's motion for summary judgment dismissing the claim, or alternatively, for an order permitting additional discovery:
1. Notice of Motion and Supporting Affirmation of Edward F. McArdle, Assistant Attorney General, with attached exhibits and Memorandum of Law ("McArdle Affirmation")

2. Affirmation in Opposition of August J. Nordone, Esq. ("Nordone Affirmation")

3. Defendant's Letter Reply, dated April 16, 2001 ("McArdle Letter 1")

4. Defendant's Letter Reply, dated May 3, 2001 ("McArdle Letter 2")

5. Filed Papers: Claim; Answer; Response to Demand for Verified Bill of Particulars; Scheduling Order issued March 21, 2001; Supplemental Response to Demand for Verified Bill of Particulars

Claimant was injured, and his vehicle was damaged, in a collision allegedly caused by the negligent operation of a Department of Transportation (DOT) street sweeper. The accident occurred in September 1996; this claim was commenced in December 1996; and a Note of Issue was filed on March 5, 1999. In September 2000, I determined that the standard of ordinary negligence applied to the facts of this case and granted summary judgment in favor of Claimant on the issue of liability (Decision and Order, Motion No. M-61609, Sept. 13, 2000). By a scheduling order issued on March 21, 2001, the damages trial was set to commence on November 19, 2001.

In the instant motion, Defendant seeks an order dismissing the claim on the ground that Claimant did not sustain a "serious injury" as that term is defined by Insurance Law §5102, or, alternatively, an order directing additional discovery due to unusual and unanticipated circumstances that arose subsequent to the filing of the Note of Issue. Upon receipt of a physician's affidavit contained in the affirmation in opposition to this motion, Defendant has withdrawn that branch of the motion based on Insurance Law §5102 and narrowed the demand for additional discovery to these items:
1. A second examination before trial (EBT) of Claimant, relating to medical changes occurring after the filing of the Note of Issue;[1]

2. Any additional discovery arising from Claimant's EBT for documentation of economic and other damages; and

3. Immediate disclosure of Claimant's expert witnesses.

(McArdle Letter 2.)

Claimant's original bill of particulars, which was served in March 1997, stated that he was still receiving medical services and that it had not yet been determined if any of his injuries would be permanent. Claimant was deposed in March 1998, and at that time he stated that as a result of the accident and in addition to the scrapes and contusions which had since healed, he was experiencing pain in his left hip, which radiated down to his foot, and that he was waiting for insurance approval to have an epidural block performed to reduce the pain (McArdle Affirmation, Exhibit E, pp. 11-12). He indicated that surgery, which he believed would be a "fusion," was being considered by his physicians if the epidural block was not successful (id. p. 22).

Subsequently, in December 1999, after the Note of Issue was filed, defense counsel was informed that Claimant had undergone surgery in September 1999. During the next year, there was significant activity between the parties, with Claimant providing some additional discovery relating to damages and Defendant's counsel requesting information regarding Claimant's changed physical status (see, McArdle Affirmation, Exhibits K, L. N, O). In my March 2001 scheduling order, I established the date of the damages trial, also requiring that Claimant provide a list of health care providers and authorizations and file a supplemental bill of particulars by April 30, 2001 and that both parties serve the CPLR 3101 responses by September 1, 2001. The supplemental bill of particulars stated that Claimant suffers from a permanent partial disability, relating to bi-lateral spondylolysis which required a lumbar decompression and fusion, which continues to cause tingling down his legs and foot numbness, and which continues to affect his ability to work.

Because of the intervening operation and the new assertion that Claimant has injuries which are permanent in nature, Defendant asserts that the claim has changed from one in which the injury appeared to be relatively minor to one that seeks a large monetary award, and consequently the State seeks a second examination before trial. Defense counsel candidly acknowledged that "[t]he level of discovery done in bigger injury cases was not done in this case apparently because the deposition and Bill of Particulars strongly indicated a less than permanent injury" (McArdle Affirmation, ¶14). It is also evident from the copy of the deposition transcript included in the motion papers (id. Exhibit E), that the principal focus of the earlier examination was the circumstances of the accident and the overall issue of liability. Counsel for Claimant opposes this branch of the instant motion, arguing that the intervening medical events were not unanticipated because Claimant had indicated that an operation was being considered (Nordone Affirmation, ¶43) and because no actual prejudice has been shown (id., ¶40).

Courts have broad, discretionary power to supervise disclosure in the cases before them and may even direct disclosure after trial of an action has commenced (CPLR 3102[d[). A party that seeks to reopen discovery after a note of issue has been filed should be prepared to show "special, unusual or extraordinary circumstances" to warrant the exercise of such discretion 10 Park Sq. Associates v The Travelers, 266 AD2d 859; Francis v Board of Education of the City of Mount Vernon, 278 AD2d 449; Haviland v Smith, 101 AD2d 626). The Fourth Department has stated that circumstances supporting the exercise of a court's discretion must satisfy the description contained in 22 NYCRR 202.21(d): they must "require additional pretrial proceedings to prevent substantial prejudice" (Marks v Morrison, 275 AD2d 1027).

The requisite showing cannot be made on conclusory statements that information necessitating further discovery has been disclosed but, rather, the application must specifically describe the nature of the information sought (Spinosa v Hartford Fire Insurance Co., 114 AD2d 633) and must explain why the need for the requested discovery could not have been anticipated at the appropriate time (Laudisio v Diamond D Const. Corp., ____ AD2d ____, 722 NYS 2d 207; Easley v VanDyke, 110 AD2d 967). On the other hand, the party opposing a request for additional discovery should be in a position to show that it will be prejudiced if the requested relief is granted (Taub v Brockman, 271 AD2d 226).

Courts have held that circumstances warranting additional discovery have not been presented where one of the parties simply neglected to obtain an independent medical examination (Laudisio v Diamond D Const. Corp., supra). Courts have indicated, however, that additional discovery may be warranted when it is alleged "that the plaintiff suffered new or additional injuries or that the nature and extent of the plaintiff's existing injuries changed dramatically" (Audiovox Corp. v Benyamini, 265 AD2d 135, 138). A court that proceeded to trial of damages without permitting the defendant to investigate allegations of new injuries that were contained in a supplemental bill of particulars served on the eve of trial was held to have abused its discretion (Petti v Pollifrone, 170 AD2d 494, 495).

In the instant claim, the note of issue was filed some time before Defendant became aware that Claimant had, in fact, undergone surgery or that he was claiming permanent injury. Upon discovering that change in circumstance, defense counsel consistently sought supplemental information and, in fact, I ordered significant supplementation of discovery in the March 2001 scheduling order. At the scheduling conference which resulted in that order, both the parties and the Court recognized that, irrespective of the fact that a note of issue had been filed, the issue of damages was not ready for immediate trial, in large part because of the change in Claimant's medical condition.

Although Claimant strenuously opposes being required to submit to a second deposition, there is no allegation that he would be prejudiced if this were allowed (see, Nordone Affirmation ¶¶ 38-45). Indeed, it is difficult to see how Claimant could be prejudiced in this situation. There is no danger that the trial will be delayed, and permitting Defendant to learn more about Claimant's actual physical condition and to explore the permanency of any injuries can only prevent unfair prejudice to Defendant at trial and might very well assist Claimant in settlement negotiations prior to trial. Consequently, in the circumstances presented here, I direct that Claimant submit to a second examination before trial, with the inquiry limited to his 1999 surgery, his subsequent physical condition, and any affect that his post-surgery condition has had on his economic situation.

With respect to that branch of the motion seeking additional documentation that may be indicated by information received during Claimant's examination, there is no reason at present to anticipate what, if any, documentary evidence the deposition may reveal. Nor is there any reason to anticipate that Claimant would hesitate to provide such documents if they are relevant to Claimant's current condition. This portion of the motion, therefore, is premature and quite likely unnecessary. Finally, I perceive no reason to depart from the schedule established in my March 2001 order which requires both parties to serve their CPLR 3101 responses by September 30, 2001. The case cited by Defendant (Schechter v City University of New York, Ct Cl, May 14, 1996 [Claim No. 88852], Mega, P.J.; McArdle Affirmation, Exhibit Q) is readily distinguishable in that it relates to a claimant's responsibility to serve a supplemental 3101(d) response when the information contained in the original response became inaccurate because of later events.

For the reasons set forth above, Defendant's motion is granted to the extent that Claimant is directed to submit to an examination before trial relating to his physical condition from September 1999 to present, and is otherwise denied.

June 25, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]It is implicit in the second demand, and confirmed by a subsequent message from defense counsel, that the requested EBT would also involve questions relating to any effect that Claimant's medical changes had on his economic situation.