New York State Court of Claims

New York State Court of Claims

QUINONES v. THE STATE OF NEW YORK, #2002-032-017, Claim No. 98436, Motion No. M-65757


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 response.

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:
Bernard B. Schachne, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Dennis M. Acton, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 22, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

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 (
id., Exhibit 4) lists F. Forrest Gabriels, M.D. as the surgeon who performed the operation and Robert Schultze, M.D. as the assistant surgeon.
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:
Treating Physicians

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 based.
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. Bell.[1]
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[2]
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 response.
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 Gabriels, who

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 direction.
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 June 13
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 defense counsel.
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 submissions.[3]

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 March 2003.

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 [d]).
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 medical expert.

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 supplemental response.

November 22, 2002
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to compel discovery:

  1. Notice of Motion and Supporting Affirmation of Bernard B. Schachne, Esq., with annexed exhibits 1-7.
  1. Affidavit in Opposition of Dennis M. Acton, AAG.
  1. 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.

[1] 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.
[2] 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.
[3] 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).