New York State Court of Claims

New York State Court of Claims

BROWN v. STATE OF NEW YORK, #2003-018-207, Claim No. 104477, Motion No. M-66127


Synopsis


Court grants claimant's motion seeking discovery from non-party witness.

Case Information

UID:
2003-018-207
Claimant(s):
SCOTT BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104477
Motion number(s):
M-66127
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
NEWMAN, O'MALLEY & EPSTEIN, P.C.By: Stuart R. Lang, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 26, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
By this motion, claimant seeks an order directing discovery from a non-party witness.
In his filed claim, claimant seeks damages for personal injuries allegedly suffered by him on April 29, 2001, when he tripped and fell on a pathway located within the confines of Marcy Correctional Facility. As set forth in the moving papers, claimant's attorney asserts that pursuant to a contract dated January 12, 2001, non-party witness L.C. Whitford Company, Inc. had contracted with the State to perform certain construction and renovation work at Marcy Correctional Facility, including the immediate area where claimant fell. Claimant's attorney therefore asserts that this witness may have in its possession documentation and/or photographs describing or depicting the condition of the pathway at the time of the accident. Claimant now seeks an order seeking the production of such materials.
Defendant has voiced no objection to this motion. Additionally, the Court notes that the motion papers have been served upon L.C. Whitford Company, Inc., the non-party witness, who also has not submitted any papers in opposition.

Accordingly, it is

ORDERED, that L.C. Whitford Company, Inc., 164 North Main Street, Wellsville, New York, shall produce and allow discovery and inspection of the following items:

1. Photographs, documentation and memorandum, and progress/work records generated in connection with bidding process pre-construction inspection and analysis regarding New York State Project No. 41414-C, contract dated January 12, 2001, for the replacement of pedestrian compound gates and walkway at Marcy Correctional Facility, Old River Road, Marcy, New York;
2. All documents, photographs, memorandum prepared in connection with OGS Project
No.41414-C, Article 4 Submittals - § 4.5.
It is further
ORDERED, that such production and inspection shall be completed at a date and time to
be mutually agreed upon by claimant and non-party witness L.C. Whitford Company, Inc., but no
later than 45 days after service of a copy of this decision and order by claimant upon L.C.
Whitford Company, Inc.
March 26, 2003
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
The following papers were considered by the Court in connection with this motion:
Notice of Motion...........................................................................................1
Affirmation of Stuart R. Lang, Esquire, in support of claimant's motion......2
Correspondence dated December 5, 2002 from Joel L. Marmelstein,
Esquire, Assistant Attorney General.........................................................3
Filed Documents:
Claim..............................................................................................................4