New York State Court of Claims

New York State Court of Claims

MARGARITIS v. THE STATE OF NEW YORK, #2003-015-350, Claim No. 104065, Motion No. M-66316


Court granted order directing claimant who purportedly left the USA after filing claim with no expectation of returning to appear for an examination on oral question before the Attorney General on a date certain. If claimant fails to appear defendant may seek relief pursuant to CPLR 3126 or 3216.

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:
Hollander, Strauss & Mastropietro, LLPNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Arthur Patane, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 5, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for an order compelling claimant Nick Margaritis to comply with a notice of examination before trial and demand for production of certain books and records dated March 5, 2002 is granted. The claim filed on April 2, 2001 seeks to recover certain monies alleged to be due on a contract with the New York State Department of Transportation (DOT) (Contract No. D253359) which was assigned to claimant by Fireman's Insurance Company of Newark, New Jersey in August 2000. After commencement of the claim but prior to discovery being conducted claimant purportedly left the United States for Greece and has not returned to this country. Claimant's attorneys presented this information to the Court in their prior unsuccessful attempt to be relieved of their duties of representation (see, Margaritis v State of New York, Ct Cl, June 10, 2003, [Claim No. 104065, Motion Nos. M-66469, M-66316, UID # 2003-015-326] Collins J., unreported).

The instant motion for an order compelling Nick Margaritis to appear for an examination before trial and to produce at said examination all books and records related to the damages sought in the claim was originally returnable on February 19, 2003. The Court in its June 10, 2003 decision and order denying claimant's attorneys' motion to be relieved as attorneys of record adjourned the return date of this motion to July 16, 2003 and directed that responsive papers be filed and served no later than July 9, 2003. Claimant's attorneys have neither opposed the motion within that time period nor moved again by order to show cause to be relieved as counsel.

Rule 3124 of the Civil Practice Law and Rules (CPLR) provides "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response." Here the defendant provided proof that defendant served a notice of examination before trial on the claimant's attorney on March 5, 2002 seeking to examine Nick Margaritis at the Justice Building on April 9, 2002 at 10:00 a.m. Defense counsel alleges in his affirmation in support of the motion that claimant's attorneys requested a postponement of the examination by letter dated April 5, 2002 citing Margaritis' alleged absence from the United States. Subsequently claimant's attorneys requested and received an extension of the previously ordered discovery deadline to December 23, 2002. This extension was obtained by stipulation of counsel which was so ordered by the Court. A further extension of the discovery deadline to March 23, 2003 was likewise obtained by stipulation of the parties' attorneys. Neither party requested an additional extension of the March 23, 2003 date for the completion of discovery and filing of the note of issue. Discovery has not occurred in the interim and no note of issue has been filed. The instant motion is unopposed.

The court hereby orders and directs Nick Margaritis to attend before the assigned Assistant Attorney General at the Justice Building, Room 435A, Empire State Plaza, Albany, New York on October 27, 2003 to be examined under oath concerning the above entitled claim and to answer any and all questions concerning the claim and the items of damages alleged to have been suffered. It is further ordered that claimant Nick Margaritis shall produce at such examination any and all books and records which are material and necessary to the prosecution or defense of the claim.

Although the Court may order Mr. Margaritis' attendance at an examination before trial, the additional relief sought by the defendant is unavailable.

The delay and failure to disclose complained of by the defendant is claimant's failure to submit to an EBT and does not address any concomitant failure to comply with other, written disclosure devices. Both the notice of motion and the concluding paragraph of defense counsel's affirmation in support request an order precluding claimant from offering proof at trial "concerning [the] facts which are the subject of said disclosure demands". Because the notice of examination before trial did not particularize the specific issues upon which claimant would be deposed, there is no way to determine at this juncture those facts (subjects) which may be inquired into at the examination before trial. Therefore, the conditional preclusive relief sought in the motion is unavailable. Should the claimant fail to appear at his examination as directed herein the defendant may pursue further relief including that provided in CPLR § 3126 or pursuant to CPLR 3216.

September 5, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 24, 2003;
  2. Affirmation of Arthur Patane dated January 24, 2003 with exhibits.