New York State Court of Claims

New York State Court of Claims

ROMAN v. THE STATE OF NEW YORK, #2002-005-523, Claim No. 101018, Motion No. M-64783


Decision on Defendant's motion for an order of preclusion and summary judgment is reserved.

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:
David Roman,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 20, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On March 13, 2002, the following papers, numbered 1 to 3, were read on motion by Defendant for an order of preclusion and summary judgment:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Filed Papers: Claim
Upon the foregoing papers, decision on this motion is reserved.

In this motion, the Defendant seeks an order of preclusion and then summary judgment. The claim herein alleges a cause of action sounding in medical neglect/medical malpractice occurring on or about July 7, 1999, at Auburn Correctional Facility (Auburn).

In response to Defendant's demand on or about October 19, 1999, Claimant indicated that he would notify Defendant if he obtained an expert. Thereafter, on January 31, 2002, Defendant renewed its demand for disclosure of expert witnesses whom Claimant intended to call at trial. On February 21, 2002, Defendant received Claimant's further response in which Claimant disclosed that he expected to call two named doctors, Drs. Eppel and Turhal, as expert witnesses at trial.

Defendant thereupon decided to directly contact Claimant's purported expert witnesses, one of whom wrote to Defendant on February 21, 2002 that, as of that date that "I have not agreed to appear as an expert witness for David Roman." Leaving aside the question of the propriety of directly contacting named expert witnesses for an opposing litigant, although acknowledging that they also purportedly were treating physicians, Dr. Eppel's written statement, does not reflect his rejection of such possible appearance, but merely as of that date he had not agreed to appear. To the contrary, Claimant has responded that he expected to call the two named doctors, and the mere fact that Dr. Eppel had not agreed to do so as of February 21, 2002, and that Defendant failed in its attempt to locate Dr. Turhal, does not warrant an order of preclusion.

However, Defendant's motion only sought preclusion on the limited grounds noted above. In reviewing the Defendant's CPLR 3101(d) demand (Exhibit C), and Claimant's further response (Exhibit F), I found the responses to be inadequate, particularly Paragraphs:
(C) demanding a description in reasonable detail of the substance of the facts and opinions on which each expert will testify;

(D) disclosing in reasonable detail the subject matter on which each expert is expected to testify, and

(E) disclosing in reasonable detail a summary of the grounds for each expert's opinion.

Nonetheless, and given the recent guidance provided by the Appellate Division, Fourth Department, in Santos v State Of New York, 2002 NY App Div LEXIS 984, ____ AD2d _____, February 1, 2002, where the Appellate Division held that treating a motion as one for summary judgment without giving notice of an intention to do so effectively deprived the prisoner of the opportunity to present any evidence in opposition, I have decided to reserve decision of this motion, and Order the following:
(1) The trial of the claim herein, scheduled for April 30, 2002 , is adjourned;

(2) Claimant shall have until April 12, 2002 to serve and file an Amended Expert Witness Disclosure consistent with the requirements of CPLR 3101(d);

(3) Defendant shall have until April 19, 2002 to raise any objections, if it is so advised, to Claimant's anticipated Amended Expert Disclosure;

(4) Claimant shall have until April 26, 2002 to serve and file written responses to the Defendant's objections, if any, to the said Amended Expert Disclosure, and

(5) On April 30, 2002, instead of the trial, I will hear oral argument on the pending motion for preclusion and summary judgment, if Claimant so requests in writing. If oral argument is not requested, I will deem the matter submitted on the papers, and will render my decision on the Defendant's pending motion.
Accordingly, decision is reserved until April 30, 2002.

March 20, 2002
Rochester, New York

Judge of the Court of Claims