New York State Court of Claims

New York State Court of Claims

QUINONES v. THE STATE OF NEW YORK, #2002-032-043, Claim No. 98436, Motion No. M-66563


Defendant's motion to renew ("motion for review and restatement") is granted and, upon reconsideration, the Court adheres to its earlier ruling, while acknowledging that certain factual statements contained in its earlier decision appear, in light of new information, to be inaccurate.

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, Esq., NYS Attorney General
By: Dennis M. Acton, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
May 5, 2003

Official citation:

Appellate results:

See also (multicaptioned case)



In a previous decision (Motion No. M-65757, November 22, 2002), this Court granted claimant's motion to compel defendant to accept a CPLR 3101(d) response which defense counsel contended was untimely served. In the course of reaching that decision, a chronology of events was set out, and defendant has now moved for a "review and restatement" of the decision in order to correct certain inaccuracies and omissions that he contends were present in that account of the facts. The Court will accept this as a timely motion to renew (CPLR 2221[e]), as defendant asserts that the earlier decision did not include consideration of facts that are established by certain documents, which defendant reasonably believed were available to the Court in its own files.

The events giving rise to the previous motion concerned various discovery demands and responses served by each party on the other. The dispute centered on the timing of those demands and responses and determining who was responsible for various delays in the course of the litigation. Counsel for defendant is correct when he states that the earlier decision made no reference to certain of the demands and responses that had been served. Because this is a filing court (22 NYCRR §206.5) and because both counsel are diligent in fulfilling the requirement that documents served on the opposing party be filed with the Court, those demands could be expected to be in the Court's files.[1] It is incumbent on counsel, however, to draw the Court's attention to any documentation relevant to the issue at hand, even if such documents may reside in the Court's files.

Be that as it may, the primary area of misunderstanding seems to be related to the sequence of events and whether one or the other of the attorneys, or both of them, had acted with due diligence in conducting discovery in this action. This claim was, for most of its history, assigned to another judge of this Court, former Judge John L. Bell. When he retired, the claim was transferred temporarily to a second judge and, several months later, to this chambers. As the chambers' file was moved from one location to another, it seems that some documentation and, most importantly, some records of telephone conversations with counsel were either lost, or it is possible they were never set down in writing.

Without going into the specific details of this extended chronology, which is both unnecessary and would be a waste of judicial resources at this juncture, the Court concludes that the account of events given in its November 22, 2002 decision is not entirely accurate. In fact, it appears that permission for certain steps had been granted prior to the claim's transfer to this chambers but there was no record of such agreement before the Court at the time of the earlier decision. In addition, contrary to the implication in the decision and despite the statement of claimant's counsel that he "expected" to call claimant's treating physicians as his experts, it appears that neither physician had been contacted on behalf of claimant when they were approached by counsel for the State. In short, the Court now concludes that the actions of defense counsel were not so much a cause of the delay and dispute that marked preparation of the matter for trial as was indicated in the earlier decision.

None of the missing information would have made a difference to the outcome of that earlier motion, however. Particularly in light of claimant's incarceration shortly before the scheduled trial date, an adjournment was necessary in any event, and this gave both parties an opportunity to review matters and prepare for litigation. Moreover, in light of the strong policy preference for resolving disputes on the merits (see e.g., Moran v Rynar, 39 AD2d 718), preclusion of both of claimant's experts, the treating physician and the engineer, would have been extremely inappropriate under the circumstances.

Defendant's motion to renew is granted and, upon reconsideration, the Court adheres to its original decision, while noting that some of the factual statements in that decision appear now to be inaccurate.

May 5, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion to renew:
1. Notice of Motion and Supporting Affidavit of Dennis M. Acton, Esq., AAG,with annexed Exhibits

2. Affirmation in Opposition of Bernard B. Schachne, Esq., annexed Exhibits

3. Affidavit in Reply of Dennis M. Acton, Esq., AAG

Filed papers: Claim; Answer

[1] It should be noted, however, that there are usually at least two files for every claim, one maintained in the main Record Room in Albany and one maintained in the IAS judge's chambers. Only the former will necessarily have a copy of every document that has been filed with the Court. Only the latter will have internal notes and memoranda created by the judge, law clerk or secretary.