New York State Court of Claims

New York State Court of Claims

SOOSAR v. THE STATE OF NEW YORK, #2003-019-556, Claim No. 99727, Motion No. M-67100


Synopsis


Claimant's motion to compel compliance with discovery demands granted in part and denied in part.

Case Information

UID:
2003-019-556
Claimant(s):
LYNDA SOOSAR The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
SOOSAR
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99727
Motion number(s):
M-67100
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
THE LAW OFFICES OF DANIEL P. BUTTAFUOCO & ASSOCIATES, PLLCBY: James S. McCarthy, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: John M. Shields, Esq., Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 21, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for an order compelling the defendant to respond to discovery demands or, in the alternative, an order precluding defendant from using said materials at trial. The defendant State of New York (hereinafter "State") opposes the motion.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed February 1, 1999.
  2. Verified Answer, filed February 25, 1999.
  3. Notice of Motion No. M-67100, dated July 7, 2003, and filed July 14, 2003.
  4. Affirmation of James S. McCarthy, Esq., in support of motion, dated July 8, 2003, with attached exhibits.
  5. Affirmation of John M. Shields, AAG, in opposition to motion, dated August 5, 2003, and filed August 7, 2003, with attached exhibits.
  6. 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 defenses.


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 adversary.[1] 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.


August 21, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]By way of background, claimant's current counsel did not take over this file for prior counsel until August 1, 2002.