New York State Court of Claims

New York State Court of Claims

ADRIATIC v. THE STATE OF NEW YORK, #2002-015-285, Claim No. 102067, Motion No. M-65296


Synopsis


Claimant precluded from offering evidence in trial as to items related to discovery demands unless responses are served within 60 days and EBT of plaintiff's president is conducted within 30 days.

Case Information

UID:
2002-015-285
Claimant(s):
ADRIATIC ENTERPRISES, INC.
Claimant short name:
ADRIATIC
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102067
Motion number(s):
M-65296
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Livingston T. Coulter, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Arthur Patane, Esquire
Third-party defendant's attorney:

Signature date:
August 30, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion for an order pursuant to CPLR 3124 and 3126 compelling claimant to respond to a demand for a bill of particulars dated September 6, 2000 and to defendant's omnibus discovery demands dated April 4, 2002 and for alternative relief precluding claimant from offering proof at trial of facts which are the subject of the demands is granted. This contract claim seeks to recover the sum of $5,854,548.93 in damages in connection with the State's alleged breach of a highway bridge painting contract (Contract # D 254163) and to recover for the cost of extra work, labor, materials and equipment not specified in the contract documents but necessitated by U.S. Department of Labor Regulations under the Occupational Safety and Health Administration Act (OSHA).

The instant motion seeks to compel service of a verified bill of particulars pursuant to a demand dated September 6, 2000 (Exhibit B) and to compel responses to omnibus discovery demands dated April 4, 2002 (Exhibit I) and to order the examination before trial of claimant pursuant to a notice of examination dated April 4, 2002.

Claimant's attorney did not oppose the motion but submitted an affirmation in which he again explained his reasons for failing to meet discovery related deadlines and his anticipated failure to complete discovery and file a note of issue by July 5, 2002, the last extended date for such action set forth in the Court's amended order dated April 11, 2002.

The Court has given due consideration to the health problems encountered by claimant's attorney and his family members and to the difficulty of claimant's president and shareholder (Arlene Scheurer) in assembling her documents following a fire at her residence several weeks prior to April 10, 2002. All prior extensions granted by the Court have come and gone with no apparent action on claimant's part to comply with any of the subject demands.

The motion is granted in all respects and the claimant is hereby precluded from offering evidence at trial unless (1) a verified bill of particulars and responses to the defendant's omnibus discovery demands are served within 60 days of service of a copy of this order with notice of entry and (2) the examination before trial of Arlene Scheurer is scheduled and conducted within 30 days of service upon defense counsel of the responses to defendant's discovery demands and verified bill of particulars as set forth above.

Claimant's failure to comply with any or all of these directives will result in the preclusion of evidence at trial related to such demands without necessity of a further motion.


August 30, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Order to show cause dated June 3, 2002;
  2. Affirmation of Arthur Patane dated May 29, 2002, with exhibits.
  3. Affirmation of Livingston T. Coulter dated June 8, 2002.