New York State Court of Claims

New York State Court of Claims

BERNARD v. THE STATE OF NEW YORK, #2004-015-406, Claim No. 102988, Motion Nos. M-67940, CM-68137


Court denied defendant's motion to dismiss claim for attorney's failure to file note of issue within 90 days of service of CPLR 3216 demand. Court likewise denied claimant's cross-motion to summary judgment on issue of liability and permitted late service and filing of note of issue.

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:
Larry Dorman, P.C.By: Larry Dorman, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 28, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion pursuant to CPLR 3216 seeking an order dismissing the instant claim for claimant's failure to serve and file a note of issue within 90 days of service of a demand therefor is denied. Claimant's cross-motion pursuant to CPLR 3126 for an order striking the State's answer and awarding partial summary judgment on the issue of liability or, alternatively, requiring that the State comply with the Court's June 30, 2003 order regarding discovery is likewise denied. Claimant's belated request for an order extending his time to file the note of issue contained in the cross-motion is granted to the extent that claimant shall file and serve a note of issue within 15 days of the filing of this decision and order. The claim filed on August 28, 2000 asserts that the claimant was injured as a result of the negligence of the State while working at a wooded area/campground known as Twin Valley on January 5, 2000. Claimant, an inmate at the Moriah Shock Incarceration Correctional Facility (the facility) in Mineville, New York, was part of a work crew clearing trees and brush at the Twin Valley site. The claim alleges that logs and debris were normally cleared using either a log carrier or a sled but that on the date of claimant's accident the work crew was instructed by supervising officers to roll the logs down an embankment. Claimant was struck by a log sustaining injuries to his ankle and leg.

Defendant's motion to dismiss the claim for unreasonably failing to serve and file a note of issue pursuant to CPLR 3216 will be addressed first. By stipulation and order of Hon. John L. Bell dated October 19, 2000 the parties were ordered to complete discovery by September 14, 2001 and file a note of issue by September 28, 2001. The filing deadline was extended by further orders of Judge Bell dated August 2, 2001 and January 2, 2002. The latter of these orders extended the note of issue filing date to March 31, 2002. Court records indicate that following a telephone conference on March 22, 2002 Judge Bell agreed to extend the deadline for completion of discovery to May 31, 2002. The proposed order did not reach Judge Bell's chambers until after the Judge's retirement and no further order was issued.

The claim was reassigned to these chambers on April 19, 2002 and a telephone conference was conducted on May 8, 2002. The Court thereafter executed an order dated May 15, 2002 extending the discovery deadline and date for filing of the note of issue to July 7, 2002. The note of issue was not filed by the designated date and at a pre-trial telephone conference held on September 23, 2002 claimant's attorney complained of outstanding discovery demands but did not request an extension of the then expired time to file the note of issue.

On November 4, 2002 the Court, mindful of the delays encountered in this case, served a 90-day demand that claimant resume prosecution and serve and file a note of issue. The Court simultaneously issued an order requiring the parties' attorneys to appear in person at a discovery conference in Albany on November 13, 2002. Claimant's attorney thereafter filed an affidavit of prior engagement and the discovery conference was held on November 21, 2002.

Claimant subsequently served and filed an additional discovery demand and thereafter moved to compel disclosure of material previously demanded in claimant's notice for discovery and inspection dated November 20, 2002. In an order dated June 30, 2003 the Court, inter alia, directed defense counsel to provide within 30 days the names and current addresses of inmates who were members of the claimant's work crew on January 5, 2000 and copies of any statements taken from the inmates concerning claimant's accident. The decision and order provided that if the information directed to be disclosed was unavailable defense counsel was to provide the affidavit of a person responsible for the keeping of records at Moriah Shock Incarceration Facility asserting that he or she conducted a diligent search for the records requested and that such records do not exist or could not be located. On September 10, 2003, well after the time period provided in the June 30, 2003 order, defense counsel provided the affidavits of Bruce E. Olsen, Superintendent of Moriah; Bruce McCormick, the Facility Captain at Moriah; and Sgt. Peter Besson, Crew Sergeant at Moriah attesting to the non-existence or unavailability of the January 5, 2000 crew rosters and any statements purportedly taken from members of claimant's inmate work crew.

The Court's June 30, 2003 decision and order further directed that claimant's counsel be permitted to review Department of Correctional Services directives concerning logging procedures and safety. The remaining requests contained in the claimant's motion were either denied as immaterial and unnecessary or deemed by the Court to have been satisfied. The June 30, 2003 decision and order did not address claimant's then belated request to indefinitely extend claimant's time to file the note of issue which was overdue under the Court's May 15, 2002 order as well as the November 4, 2002 demand. No further request for an extension of the filing and service date was made until claimant filed the instant cross-motion on March 8, 2004.

Defendant now moves to dismiss the claim due to claimant's failure to respond to the Court's 90-day demand.

The procedure to be followed upon receipt of 90-day demand was succinctly stated by the Appellate Division, Second Department in Brown v World Fin. Props., 306 AD2d 303 at 304 as follows:
Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff should have complied with the notice by filing a note of issue or should have moved, before the default date, either to vacate the notice or extend the 90-day period (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2002], lv denied 100 NY2d 502 [2003]; Raffa v Cook, 289 AD2d 385 [2001]; Wechsler v First Unum Life Ins. Co., 295 AD2d 340 [2002]). The plaintiff failed to do so. Accordingly, to avoid dismissal, the plaintiff was required to demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., supra at 503; Stuckey v Westchester County Dept. of Transp., supra).
In the instant case claimant's attorney neither complied with the demand nor timely moved for an order vacating the notice or extending the February 4, 2003 filing date. Therefore, on the instant motion, the Court must consider the claimant's proffered excuse for the delay and the extent to which a meritorious cause of action has been demonstrated. In evaluating the adequacy of claimant's excuse the Court may consider such factors as "the history of the case, the extent of the delay, evidence of intent to abandon the case, undue prejudice to defendant and the merits of the underlying claim [citations omitted]" (Schneider v Meltzer, 266 AD2d 801, 802).

Claimant's attorney points to his repeated efforts to obtain discovery including the identities and statements of members of claimant's work crew on the date of the accident. Clearly the defendant did not provide the information demanded or a satisfactory explanation of the unavailability of such information in a timely manner. The delay in this regard is clearly attributable to the defendant. While claimant should have timely moved for relief from the filing date imposed by the Court's demand the Court finds claimant's excuse for the delay in responding to the 90-day notice to be sufficient under the circumstances.

As to the merit of the underlying claim, the Court notes that claimant's cross-motion is not supported by an affidavit from Stanley Bernard and the affirmation of his attorney, who lacks direct knowledge of the facts underlying the claim, would appear to be insufficient to demonstrate potential merit. The cross-motion does, however, contain a copy of the claim verified by the claimant (claimant's Exhibit A) and the Court has chosen to treat that pleading as an affidavit pursuant to CPLR § 105 (u). Accordingly, upon the pleading the Court finds the existence of a potentially meritorious cause of action for negligence. Defendant's motion to dismiss the claim pursuant to CPLR 3216 (e) is, therefore, denied.

Claimant's cross-motion to strike the defendant's answer and award summary judgment must likewise be denied except to the extent that it seeks leave to file and serve a note of issue. In the case of Kinge v State of New York, 302 AD2d 667, the Appellate Division, Third Department, recently affirmed a Court of Claims decision denying a motion for sanctions pursuant to CPLR 3126 premised upon the State's extensive delay in complying with disclosure. After citing the general policy favoring resolution of actions on the merits the Appellate Division held that "before striking an answer, entering a default judgment or issuing a preclusion order, there must be a clear showing of willful or contumacious conduct (see Osterhoudt v Wal-Mart Stores, supra at 675; Nebozny v Cappelletti, 267 AD2d 623, 625)". The Court went on to observe (at 670) that "[t]he mere loss of a record, while perhaps careless, does not, without more, establish willful or contumacious conduct." (Emphasis added.)

Sanctions, including the striking of pleadings, may also be imposed pursuant to the common law doctrine of spoliation of evidence where a party intentionally or negligently disposes of critical evidence his or her adversary has not been provided an opportunity to inspect, the party was on notice that the evidence might be required in future litigation and the unavailability of the subject evidence prejudices the ability of the adversary to prove its case (see, MetLife Auto & Home v Basil Chevrolet, 1 NY3d 478; Miller v Weyerhaeuser Co., 3 AD3d 627; Baglio v St. John's Queens Hosp., 303 AD2d 341; Foncette v LA Express, 295 AD2d 471; Jones v General Motors Corp., 287 AD2d 757).

Claimant first contends that the State "destroyed the [inmates'] statements while the claim was pending" (Dorman affirmation, para. 25). While there is some proof that statements were taken defense counsel asserts in his affirmation in opposition to the cross-motion that Sergeant Larry Reid, who supervised claimant's work crew on January 5, 2000, testified at an examination before trial that he had suffered a stroke and could not recall taking statements from the members of the work crew due to a resulting memory impairment. Although defendant's counsel did not include a copy of the deposition transcript, the claimant has not disputed defense counsel's description of the testimony provided by Sergeant Reid. The affidavit of Bruce Olsen, Superintendent at the Moriah Shock Incarceration Facility, states that although inmate statements are usually attached to the Unusual Incident Report prepared by the crew sergeant (Sgt. Reid) " [t]here are no inmate statements in the Unusual Incident Report file maintained by Moriah regarding this incident" (claimant's Exhibit N). In addition, the current crew sergeant at the Moriah Shock Incarceration Facility, Sergeant Peter Besson, states in an affidavit that he has conducted a search of locations where crew statements might be stored, including Sergeant Reid's former locker and filing cabinets, and that no such statements were found.

As to the failure to disclose the "crew roster" containing the names and addresses of the members of the inmate work crew, the affidavit of Bruce Olsen states that crew rosters were used primarily to conduct the "noon count" and were retained for thirty days and then routinely destroyed pursuant to facility policy. Although the claimant herein was injured on January 5, 2000 the claim was not filed with the Court until August 28, 2000 pursuant to a grant of late claim relief by Judge Bell (Bernard v State of New York, Ct Cl, August 4, 2000 [Motion No. M-61948, UID # 2000-007-043], Bell, J., unreported). Claimant has offered no proof other than counsel's unsupported conjecture to establish the negligent or intentional destruction of evidence with regard to the crew roster and the defendant has adequately established a routine policy of destroying the rosters after thirty days. Claimant did not initiate legal proceedings until some eight months following January 5, 2000 and the defendant was, therefore, not made aware of the need to retain the subject information until well after the time facility policy permitted its destruction (see, Lawrence Insurance Group v KPMG Peat Marwick, 5 AD3d 918).

The claimant herein may testify on his own behalf as to the terrain and weather conditions at the accident site and any instructions provided to the work crew by DOCS personnel prior to the accident. Additionally, in his reply affirmation claimant's counsel asserted that he has spoken with Gottibaldi Berequet, one of the members of claimant's crew (Dorman's reply affirmation, para 6). Arguably Mr. Berequet may be called to corroborate claimant's version of the happening of the accident, the attendant weather conditions and the instructions given to claimant and other members of the work crew. In addition, claimant may present the testimony of the work crew members whose last known addresses have already been disclosed by the defendant in an amended supplemental response dated April 1, 2004 and filed with the Court on April 5, 2004.

The Court finds that under the circumstances presented the claimant has failed to establish either wilful or contumacious conduct pursuant to CPLR 3126 or the intentional or negligent destruction of crucial evidence. As a result claimant's cross-motion to strike the answer and award partial summary judgment is denied except to the extent that claimant's request for leave to file a note of issue is granted. Accordingly, the Court directs claimant's attorney to file and serve a note of issue within fifteen (15) days of the filing of this decision and order.

May 28, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 21, 2004;
  2. Affirmation of Kevan J. Acton dated January 21, 2004;
  3. Notice of cross-motion dated March 3, 2004;
  4. Affirmation of Larry Dorman dated March 3, 2004 with exhibits;
  5. Affirmation of Kevan J. Acton dated April 1, 2004 with exhibits;
  6. Reply affirmation of Larry Dorman dated April 6, 2004.