Claim, filed February 1, 1999.
Verified Answer, filed February 25, 1999.
Notice of Motion No. M-67100, dated July 7, 2003, and filed July 14,
Affirmation of James S. McCarthy, Esq., in support of motion, dated July 8,
2003, with attached exhibits.
Affirmation of John M. Shields, AAG, in opposition to motion, dated August 5,
2003, and filed August 7, 2003, with attached exhibits.
Reply Affirmation of James S. McCarthy, Esq., in support of motion, dated
August 7, 2003, and filed August 13, 2003, with attached exhibit.
This claim arises from an alleged slip and fall incident on the Goose Neck
Bridge, on the Jones Beach Causeway, in the Town of Hempstead, County of Nassau,
on August 22, 1998 at approximately 11:00 a.m. At the time of the accident,
claimant was rollerblading when she hit a gap in the bridge resulting in a
displaced right tibia/fibula fracture.
This claim was personally served on the Attorney General's office on January
27, 1999 and filed with the Clerk of the Court on February 1, 1999. The State
filed a Verified Answer on February 25, 1999 containing several affirmative
This claim has been pending for over 4 years. Soon after commencement, this
court held a preliminary conference setting out a discovery schedule in a
Preliminary Conference Stipulation & Order dated May 6, 1999 which
incorporated an end date for all disclosure of August 11, 2000. The original
discovery schedule turned out to be the first of 8 Preliminary Conference
Stipulations & Orders generated in the ensuing 4 years, with each one
extending the end date for all disclosure. The last and current Preliminary
Conference Stipulation & Order is dated March 6, 2003 and envisioned an end
date for all disclosure of June 30, 2003. Perhaps not surprisingly in view of
this discovery history, the parties are now before the court, unable to meet
this latest deadline, each seeking to blame the other for the various delays.
Claimant brings this motion seeking an order to compel the State to respond to
the Notice of Discovery and Inspection dated May 10, 1999 and Notices to Produce
dated March 4, 2003 and May 21, 2003. In support of their respective positions
on this motion, the parties have each submitted various letters between counsel,
as well as the State Department of Transportation, in an effort to convince this
court that past delays and noncompliance are the responsibility of their
The court will not engage or
encourage counsel by pointing to one letter or the other in an effort to assign
blame for the extraordinary delays present here. From this record the court is
satisfied that neither party or counsel is willfully attempting to sabotage the
progression of this case, but that rather a variety of factors, some
attributable to each side, have converged to cause unnecessary delays in this
case. The bottom line, however, is that claimant's counsel represents that he
is still attempting to obtain certain documents to prepare for trial.
Claimant's counsel has specifically highlighted the importance of records
identified under construction number D257054 and inspection reports for 1998
immediately preceding this accident.
In view of the foregoing, the court will provide the State an additional 45
days in which to provide claimant's counsel access to the demanded documents and
to provide responses to the Notice of Discovery and Inspection dated May 10,
1999 and Notices to Produce dated March 4, 2003 and May 21, 2003. The court
will deny that portion of claimant's motion seeking a preclusion order and costs
without prejudice to renewal. In the event, the State fails to abide by the
terms of this Decision and Order, claimant may renew her motion for a preclusion
order and costs without further leave of this court. Assuming the State's
compliance herewith, claimant is directed to file a note of issue/certificate of
readiness on or before December 31, 2003.
Accordingly, for the reasons stated above, it is ORDERED, that claimant's
motion to compel compliance with discovery demands, Motion No. M-67100, is
GRANTED IN PART and DENIED IN PART by directing the State to provide claimant's
counsel access to the demanded documents and to provide responses to the Notice
of Discovery and Inspection dated May 10, 1999 and Notices to Produce dated
March 4, 2003 and May 21, 2003 within 45 days from the date of filing of this
Decision and Order with the Clerk of this Court, while the portion of claimant's
motion seeking a preclusion order and costs is denied without prejudice.