New York State Court of Claims

New York State Court of Claims

ADRIATIC v. THE STATE OF NEW YORK, #2003-015-341, Claim No. 102067, Motion No. M-66729


Synopsis


Court granted dismissal motion based on claimant's non-compliance with Court's prior conditional order of preclusion.

Case Information

UID:
2003-015-341
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-66729
Cross-motion number(s):

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

Signature date:
July 22, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State's motion for summary judgment seeking an order dismissing the claim upon the claimant's failure to comply with the Court's previously issued conditional order of preclusion is granted. The instant claim was filed on March 7, 2000 and 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).

On September 6, 2000 the defendant served upon the claimant a demand for a verified bill of particulars and served a separate omnibus discovery demand and notice of examination before trial on April 14, 2002. Claimant failed to respond to either demand or the examination notice prompting a motion by defendant to compel responses. By decision and order dated August 30, 2002 this Court addressed the issue of claimant's failure to serve a bill of particulars by compelling service of a bill of particulars and responses to the omnibus demands within 60 days of receipt of that decision and order. Claimant was further ordered to appear for an examination before trial within 30 days of service of the bill of particulars and responses.

Claimant failed to serve a bill of particulars or written responses to the omnibus demands as directed in the Court's prior order despite proof that claimant was served with a copy of the Court's decision and order on September 27, 2002. The decision and order specified that preclusion would result from claimant's failure to serve the bill of particulars and discovery responses as directed therein without the necessity of a further motion. Defendant now moves for summary judgment dismissing the claim based upon claimant's failure to comply with the Court's August 30, 2002 order.

The defendant seeks dismissal of the claim on the ground that claimant is precluded as a matter of law from offering evidence at trial necessary to establish a prima facie case. In support of the motion defense counsel offers, inter alia, an affirmation in support, proof of filing of the decision and order on September 11, 2002 and an affidavit of service demonstrating service upon claimant of the decision and order on September 27, 2002. Defense counsel alleges that neither a bill of particulars nor responses to the omnibus discovery demand were served in accordance with the Court's order.

In response to the motion the claimant's President offers the same excuses considered by the Court on the prior motion made almost one year ago. Claimant's excuses are unpersuasive.

Claimant's unexcused failure to serve a bill of particulars or responses to the omnibus discovery demand within the time allotted in the Court's conditional order dated August 30, 2002 now precludes it from offering at trial evidence necessary to establish a prima facie case. As a result the defendant's motion for summary judgment is granted and the claim is dismissed (see, Nicoletti v Ozram Transp. 286 AD2d 719; Barriga v Sapo, 250 AD2d 795).



July 22, 2003
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of motion dated April 24, 2003;
  2. Affirmation of Arthur Patane dated April 24, 2003 with exhibits;
  3. Affidavit of Arlene Scheurer sworn to May 28, 2003;
  4. Reply affirmation of Arthur Patane dated May 30,2003.