New York State Court of Claims

New York State Court of Claims

OBARA v. THE STATE OF NEW YORK, #2001-015-173, Claim No. 099572, Motion No. M-63448


Defendant's motion to preclude claimant's experts from testifying at damages trial served on claimant's counsel on the first day of trial and alleging claimant's failure to comply with expert notice provisions of CPLR 3101 (d) denied due to its untimeliness and defendant's failure to seek a conference with the Court prior to making the motion as required by 22 NYCRR 206.8 (b).

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:
The Gucciardo Law FirmBy: Brian W. Raum, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P.C.Rebecca A. Slezak, Esquire, Appearing
Third-party defendant's attorney:

Signature date:
August 16, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion pursuant to CPLR 3101(d)[1] made on the first day of trial seeking an order precluding the claimant from proffering the testimony of three expert witnesses on the grounds that claimant's treating physician had not been previously identified as an expert witness and that the claimant failed to disclose in reasonable detail the subject matter or the substance of the facts and opinions on which each expert was expected to testify and a summary of the grounds for each expert's opinion is denied. The claim seeks to recover damages for personal injuries sustained on September 21, 1998 at approximately 11:30 p.m. at a State highway bridge rehabilitation site in Albany County. At the time of his accident claimant was a painter/sandblaster employed by Savoya Construction Company. He fell while attempting to access moveable scaffolding suspended under the bridge by the use of a ladder which was too short to reach the suspended scaffold directly. Claimant alleges that while trying to mount the scaffold it moved and he fell from the ladder to the pavement below sustaining injuries for which he seeks compensation.

The Court, by decision and order dated February 22, 2001 and filed February 26, 2001 determined the issue of liability against the State as a matter of law pursuant to Labor Law § 240(1) and set the matter down for trial on damages only. It was subsequently determined that the trial would take place beginning on April 30, 2001, the date previously established for the liability trial as set forth in the Court's letter of September 6, 2000.

The claimant's attorney, now required to go forward with proof of damages rather than proof of liability, provided responses to the defendant's outstanding demand for expert witness disclosure on March 19, 2001 which was supplemented on March 28, 2001 with regard to claimant's vocational rehabilitation expert (see, Exhibit C)[2] and on March 26, 2001 with regard to claimant's economist (see Exhibit E). Claimant's attorney also identified Dr. Avrill Roy Berkman, claimant's treating orthopedic surgeon, as a witness in a witness list dated March 28, 2001 (Exhibit F) and provided an additional copy of an expert exchange concerning Dr. Berkman dated November 21, 2000 (Exhibit "A" attached to Exhibit F).

The defendant's attorney upon receipt of the claimant's responses, which she now alleges were insufficient, made no attempt to contact the claimant's attorneys to advise them of the alleged insufficiency and request that the responses be supplemented nor did defendant's attorney contact the Court as required by newly amended 22 NYCRR 206.8 (b) in advance of a motion seeking an order of preclusion. Instead, defendant's attorney moved for an order precluding the testimony of claimant's expert witness on the first day of trial (April 30, 2001). The Court, in lieu of denying the noticed motion as untimely (see, CPLR 2214 [b]), adjourned its return date to June 8, 2001 to allow for the submission of claimant's opposition. The Court proceeded to trial upon the admonition that if the defendant was successful on its motion the expert testimony would ultimately be disregarded by the Court in fashioning the trial decision.

The claimant's attorney opposes the motion on the ground that it is a discovery related motion which was improperly made since the moving party failed to attach an affidavit demonstrating a good faith effort to resolve the issue prior to making the motion as required by 22 NYCRR § 202.7, that defense counsel failed to object to the expert responses in a timely manner and that the information provided in response to the defendant's expert demands should be deemed legally sufficient.

First it must be pointed out that 22 NYCRR § 202.7 which was cited by both attorneys has no direct application in the Court of Claims. Part 202 of the Uniform Rules for the New York State Trial Courts governs procedures to be followed in Supreme Court and County Court and not the Court of Claims. Until March 22, 2001 § 206.8 (b) of the Uniform Rules for the Court of Claims contained an identical requirement that discovery related motions include an affirmation of good faith (see former § 206.8[b]). Rule 206.8(b) was amended, however, effective March 22, 2001 to eliminate the requirement pertaining to the submission of such an affidavit and in lieu thereof substituted the following language:
206.8 Calendaring of Motions; Uniform Notice of Motion Form

(b) No motion relating to disclosure shall be placed on the calendar without counsel for the respective parties first conferring with the assigned judge. This subdivision shall not apply to prisoner pro se claims.
The defendant did not request a conference with the Court prior to making the instant motion by notice of motion and supporting affirmation dated April 28, 2001. While the amendment to the Court's rule became effective approximately one month prior to the start of trial attorneys are charged with the responsibility of knowing the law and rules applicable to the actions in which they appear. It is well established that ignorance of statutory requirements (Andrews, Matter of v Village of Sherburne, 140 AD2d 790, 791) and of standards set forth in rules and regulations (NYCRR) will not excuse noncompliance therewith (see, Carter, Matter of, v State of New York, Exec. Dept., Div. of Parole, 267 AD2d 590, affd 95 NY2d 267; see also, Wilson v State of New York, 19 Misc 2d 166).

While no reported cases have been found which have addressed the recent amendment of 22 NYCRR 206.8 (b) or imposed a penalty for its violation it appears to this Court that as summary denial of a discovery related motion is appropriate upon movant's failure to attach an affidavit of good faith no less a penalty should be imposed for the instant defendant's failure to seek a conference with the assigned judge prior to the making of the motion as mandated by the newly amended rule (see, Sixty-Six Crosby Assocs. v Berger & Kramer, 256 AD2d 26; Koelbl v Harvey, 176 AD2d 1040; Vasquez v G.A.P.L.W. Realty, 236 AD2d 311; Nikpour v City of New York, 179 Misc 928, all decided with reference to 22 NYCRR 202.7 (a)). Not only was no conference requested prior to the making of the motion, in addition defendant's attorney failed to attach any affidavit of good faith to her motion papers as was required in the Court of Claims under the pre-amendment rule.

The Appellate Division, Third Department, in Law v Moskowitz, 279 AD2d 844, recently found that preclusion of plaintiff's expert testimony was unwarranted where defense counsel believed that certain provisions of a supplemental expert response were "oblique" but did not seek clarification or supplementation from plaintiff's counsel either upon receipt of the response or at some later time. Defense counsel alleges as her explanation for not directly seeking amplification of the exchanges from claimant's counsel that she viewed such a request as an exercise in futility based upon her past dealings with counsel. The Court finds such explanation insufficient to excuse the failure of defendant's attorney to object to the expert exchange in a timely fashion and to seek an earlier resolution of the expert disclosure issue with or without the assistance of the Court. To preclude the testimony of claimant's experts under these circumstances without affording the claimant notice and an opportunity to supplement his disclosure to comply with the statutory mandates would be inappropriate (Qian v Dugan, 256 AD2d 782; see also Siegel Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR (3101: 29A, 2001 Pocket Part, at 9-10).

The circumstances presented do not justify the drastic remedy of preclusion of claimant's expert testimony. No evidence of wilful or intentional delay or withholding of disclosure was either alleged or demonstrated by the defendant (Rushford v Facteau, 280 AD2d 787). Upon receipt of the claimant's expert disclosure the defendant did nothing to either notify the claimant that the responses were viewed as insufficient or to seek judicial intervention as envisioned in 22 NYCRR 206.8(b). Instead, the defendant waited until the first day of trial to move, on notice, to preclude the expert testimony. As a result, the defendant's motion is denied in all respects and the testimony of the claimant's experts offered at trial will be considered by the Court in fashioning the trial decision.

August 16, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 28, 2001
  2. Affirmation of Rebecca A. Slezak dated April 28, 2001 with exhibits;
  3. Affirmation of Brian W. Raum dated May 29, 2001 with exhibits;
  4. Reply affirmation of Rebecca A. Slezak dated June 6, 2001 with exhibit;
  5. Sur-reply affirmation of Brian W. Raum dated June 19, 2001 with exhibits.

[1]While CPLR 3101 (d)(1) establishes the parameters governing responses to requests for expert disclosure it does not provide an enforcement mechanism for non-compliance. Such mechanism is found in CPLR 3126 which requires proof of violation of a court order relating to discovery or proof of a willful failure to disclose information which the Court finds ought to have been disclosed.
[2]References to Exhibits are to those attached to the defendant's moving papers unless otherwise noted.