QUINONES v. THE STATE OF NEW YORK, #2002-032-017, Claim No. 98436, Motion No.
Claimant's motion to compel defendant to accept 3101(d) expert responses is
granted where defendant carried out even more post-note-of-issue discovery and
where, in addition, actions of defense counsel necessitated claimant's belated
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JUDITH A. HARD
Bernard B. Schachne, Esq.
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Dennis M. Acton, Esq., Assistant Attorney General, Of Counsel
November 22, 2002
See also (multicaptioned
Claimant Felix Quinones commenced this claim to recover for personal injuries
that he suffered on August 28, 1997, when he was an inmate at Clinton
Correctional Facility. His claim alleges that at approximately 9:00 A.M., as he
was taking a shower in the shower room of Housing Unit 14, he was injured in a
fall. The claim's second cause of action alleges that prison officials failed
to provide claimant with adequate medical treatment following his fall.
Additional factual information is provided by counsel for claimant in his
affidavit submitted in support of this motion: "claimant contends [that] his
left eye was injured as a result of slipping on a wet surface and falling into a
towel rack, at the correctional facility" (Schachne affirmation, ¶4). On
the day that he suffered the injury, claimant underwent surgery on a lacerated
cornea at Albany Medical Center (AMC). The AMC Report of Operation (
, Exhibit 4) lists F. Forrest Gabriels, M.D. as the surgeon who
performed the operation and Robert Schultze, M.D. as the assistant
On December 31, 2001, approximately one month before the date that a note of
issue was to be filed in this action, counsel for claimant served on defendant a
response to some discovery demands. This response contained a CPLR 3101 (d)
expert statement indicating that Antonio N. Sabo would be claimant's expert
engineer, a list of five witnesses that claimant expected to call to testify,
and the following statement:
Claimant expects to call his treating physicians as expert witnesses at trial,
who are not subject to the purview [of] CPLR 3101(d) upon which this demand is
At that point, according to the Court ‘s files,
defendant had not yet served any expert statement. On January 25, 2002,
claimant served and filed an amended bill of particulars, enclosing a copy of
medical records despite the fact that, according to claimant's counsel and
unrefuted by defense counsel, defendant had never served a written demand for
medical records (Schachne reply affirmation, ¶ 9). Claimant then filed a
note of issue and certificate of readiness on January 28, 2002, several days
before the January 31st deadline established by former Judge John L.
The State served and filed several discovery responses after the note of issue
was filed. This was done apparently without seeking the consent of claimant's
counsel and certainly without obtaining the Court's permission. On February 4,
2002, defendant filed and served
a notice of expert witness, indicating that Keith Rupert, P.E. would be its
expert engineer; a supplemental response related to this witness was filed March
4, 2002. On February 8, 2002, defendant filed and served a supplemental
response to claimant's demand for names and addresses of witnesses, noting that
claimant's counsel "has been aware of the potential testimony of these witnesses
for an extensive period of time." On March 4, 2002, defendant filed a
supplemental notice of witness statement, identifying Robert Bombard as the
carpenter at Clinton Correctional Facility who constructed the towel/clothes
rack in the area where the claim allegedly arose, and enclosing copies of 19
photographs. On March 11, 2002, defendant filed and served a notice of expert
witness statement indicating that Dr. Robert Schultze would serve as defendant's
medical expert. Dr. Schultze, of course, is the individual listed as the
assistant on the AMC Report of Operation and therefore one of the "treating
physicians" referred to in claimant's January 2002 discovery
Counsel for claimant did not reject any of these responses. In fact, on March
22, claimant's counsel noticed an examination before trial of Robert Bombard,
and on that same date, wrote to Judge Bell stating "This case is not ready for
trial because of defendant's service of a supplemental notice of witness, notice
of expert witness, and supplemental expert witness notice." The Bombard
deposition was ultimately held in May 2002.
Also in March 2002, claimant's counsel attempted to contact Dr. F. Forrest
was listed on the AMC Report of Operation as the primary surgeon. When
reached, Dr. Gabriels stated that, in fact, he had been the attending and
supervising surgeon on that operation but that it had actually been performed by
Dr. Schultze, then a resident physician (see
, affidavit of F. Forrest
Gabriels, M.D., annexed to Schachne affirmation). When claimant's counsel
attempted to contact Dr. Schultze, the latter refused to speak with him, stating
that he had been directed by defense counsel, Mr. Acton, to have no
communication with Mr. Schachne, claimant's counsel. Later that same day, Mr.
Acton confirmed that he had indeed given Dr. Schultze this
The following month, counsel for claimant served his first supplemental
discovery response: an expert statement dated May 31, 2002 (Schachne
affirmation, Exhibit 1), which named Dr. Gabriels as the medical expert claimant
intended to call at trial. This response was rejected by defense counsel as
untimely and returned accompanied by a letter dated June 10, 2002. In turn, on
th, claimant's counsel rejected defendant's rejection as untimely and re-served
the supplemental response. A subsequent brief supplemental response, dated June
14, 2002 and relating to Dr. Gabriels' anticipated testimony, was served on
defendant. Apparently due to an oversight, this response was not returned by
In the interim, this action had been transferred to the Individual Assignment
System calendar of Judge Francis T. Collins, and the claim was conferenced on
July 2, 2002. No trial date was set at that conference because of outstanding
discovery issues. The claim was again transferred, to this Court's calendar.
Permission was given for either party to bring a motion to resolve the
outstanding discovery dispute and a trial day certain was set for December 2,
2002. This motion ensued, with claimant requesting that the Court issue an
order compelling defendant to accept the May 31, 2002 supplemental discovery
response and the June 14, 2002 supplemental response. Defense counsel opposes
the motion on the ground that claimant's belated discovery responses are
inexcusably untimely and prejudicial. At the same time, he asserts that there
was good reason for his several post-note-of-issue
In one further development, which occurred while this motion was pending,
claimant was incarcerated on Riker's Island, a correctional facility operated by
the City of New York. He has written his attorney, who forwarded the request to
the Court, asking that this action be "put off until sometime in March" after he
is released. In light of the difficulty, expense, and interference with the
operation of correctional facilities in transferring an inmate from the City of
New York to a State facility solely for the purpose of attending a trial, and in
view of the non-urgent nature of this civil litigation, claimant's request will
be granted and trial of this action will be adjourned to a date to be set in
In the Court's view, it was defense counsel, not claimant's counsel, who failed
to take the appropriate actions to preserve the right to serve any
post-note-of-issue discovery responses.
If for any reason the case is deemed unready, it is important for the objecting
party to move to strike the case (vacate the note of issue) promptly, and in any
event not beyond the time allotted by the rules.
(Siegel, Practice Commentaries, McKinney's Con Laws of NY,
Book 7B, CPLR C3402:5, at 16-17.) The time allotted by the rules in this Court
is twenty days after service of the note of issue (7 NYCRR § 206.12
If counsel for defendant was aware, as he states he was, that he intended to
retain experts and make further supplemental discovery responses, the
appropriate course of action would have been to file a motion to strike the note
of issue and request the Court's permission to conduct additional discovery.
Instead, he simply remained silent and served no less than five untimely
discovery responses, the last of which claimed for the State one of the
physicians that claimant had previously indicated he would be calling as a
In contrast, claimant's counsel had no reason to question whether the matter
was ready for trial at the point that the note of issue was filed. Only later
was he informed that defendant was going to retain an engineering expert, had
found a previously unidentified fact witness, had obtained relevant photographs,
and most significantly, was going to use as its expert one of the treating
physicians that claimant had already referenced in his pre-note-of-issue
discovery response. If anyone was prejudiced by this sequence of events it was
claimant, not defendant.
For unknown reasons, possibly simply in a spirit of cooperation beyond that
required by the law, claimant's counsel chose to accept defendant's belated
responses and, further, to raise no formal objection to the State's
"commandeering" one of its expert witnesses. He immediately notified the Court,
however, that although a note of issue had been filed, subsequent events
prevented the matter from being ready for trial, thus bringing the matter to the
attention of the Court and implicitly holding himself open to the Court's
direction as to how to proceed. Claimant's own belated responses, the
supplemental expert statements served in May and June, 2002, were therefore
truly necessitated, not by any misjudgment or failure to take necessary steps at
an earlier date (see footnote 4) but by the surprising news that the State was
going to use as an expert one of the physicians that claimant had already
indicated would be his expert.
Defense counsel's rejection of those supplemental responses was ill-advised.
That action has brought this entire course of events to the Court's attention,
and they reflect poorly only on defendant. In his affidavit, defense counsel
defends his preventing Dr. Schultze from speaking with claimant's counsel in the
following fashion: "in view of defendant's expert witness notification with
regard to Dr. Schultze, Mr. Schachne was not permitted to converse with Dr.
Schultze outside the formal setting of an examination before trial which would
provide protection for privileged communications." If this is an accurate
statement of the law (on which the Court need not rule at this time), cannot the
same be said with equal force regarding claimant's earlier response, served
before the note of issue was filed, that stated the treating physicians (Drs.
Schultze and Gabriels) were to be called as claimant's experts? Under defense
counsel's own interpretation of required procedure, he was not free to contact
Dr. Schultze to retain him as an expert in February.
Claimant's motion is granted and counsel for defendant is directed to accept
claimant's May 31, 2002 supplemental discovery response and the June 14, 2002
November 22, 2002
HON. JUDITH A. HARD
Judge of the Court of Claims
The following papers were read on claimant's motion to compel discovery:
Notice of Motion and Supporting Affirmation of Bernard B. Schachne, Esq., with
annexed exhibits 1-7.
Affidavit in Opposition of Dennis M. Acton, AAG.
Reply Affirmation of Bernard B. Schachne, Esq.
Filed papers: Claim No. 98436; Verified Answer; Claimant's Response to Demands,
filed Jan. 7, 2002; Claimant's Amended Bill of Particulars, filed Jan. 28, 2002;
Defendant's Notice of Expert Witness, filed Feb. 4, 2002; Defendant's
Supplemental Response to Claimant's Request for Names and Addresses of
Witnesses, filed Feb 8, 2002; Defendant's Supplemental Expert Witness Notice,
filed March 4, 2002; Defendant's Supplemental Notice of Witness, filed March 4,
2002; Defendant's Notice of Expert Witness, filed March 11, 2002; Claimant's
Notice of Examination Before Trial, filed March 26, 2002; Claimant's
Supplemental Response to Demands, filed June 4, 2002; Claimant's Supplemental
Response to Demands, filed June 19. 2002.
Judge Bell's original scheduling order
called for the note of issue to be filed by September 28, 2001. In September,
the disclosure deadline was extended to December 31st, and in December, it was
extended to January 31, 2002. Shortly before Christmas, counsel for defendant
wrote to counsel for claimant, with a copy to the Court, stating that his
agreement to the last extension "was conditioned upon your agreement to provide
responses to our long overdue disclosure demands, no later than December 31,
2001." Claimant's counsel subsequently wrote to Judge Bell asserting that there
had been no such agreement but stating that, in any event, the discovery
response had been served on the Attorney General on December 31st.
The dates listed in this and following
paragraphs are the dates the document in question was filed with the Court of
Claims. The exact date of service on the Attorney General may be slightly
different. Unless discussed in the text of the decision, there is no
significance to any variation in date.
According to defense counsel, he did not see
the need to hire an expert engineer until he received claimant's December 31,
2001 response naming its engineering expert, nor did he see the need to hire a
medical expert until receiving medical records in January 2002 that indicated
claimant had undergone further surgery on the affected eye (Acton affirmation,
¶ 5). The identity of witness Robert Bombard is described as being
"recently discovered" (id.
, ¶¶ 4, 10), although no reason is
given for the difficulty in discovering the identity of one of the State's own
employees. The photographs provided to claimant in late February were not taken
until after the note of issue was filed (id.
, ¶ 11).