The State of New York (hereinafter "State") moves for an order dismissing this
claim pursuant to CPLR 3126 (3). The court has not received any papers in
opposition by or on behalf of claimants.
This claim arose when claimant Jerome Dacus, an employee of Amstar Painting of
Western New York ("Amstar"), slipped and fell from a scaffold while sandblasting
a bridge located on Route 434 in Binghamton, New York on May 3, 2002. At the
time of the accident Amstar was under contract with the State for the painting
of three bridges. This claim was filed with the Clerk of the Court on March 24,
2003 and alleges violations of Labor Law 240 (1) and 241
A summary of the procedural history of this claim is relevant to the
disposition of this motion. The claim itself lists the firm of Shapiro &
Shapiro from Rochester, New York as counsel of record (hereinafter "Shapiro
Firm"), with Steven M. Zweig, Esq. from the firm of Ziller, Marsh, Lang, Small
& Zweig (hereinafter "Ziller Firm") from Buffalo, New York being of counsel
The State filed an Answer on
December 12, 2003.
On December 12, 2003, this court notified counsel, namely Mr. Zweig from the
Ziller Firm for claimants and Beth Brownson from Greene, Hershdorfer &
Sharpe for the State, of the scheduling of a preliminary conference for January
28, 2004. At the conference, Ms. Brownson appeared for the State. At the
commencement of said conference, the court attempted to contact Mr. Zweig by
telephone as planned, but was advised by a receptionist for the Ziller Firm that
Mr. Zweig had left the firm and provided two forwarding telephone numbers for
him. The court was unable to reach Mr. Zweig at either number during the
conference. The court proceeded with the conference with Ms. Brownson present
and ultimately signed a Preliminary Conference Stipulation and Order dated
January 28, 2004 setting forth discovery deadlines. Said Stipulation and Order
was forwarded to Art Ziller, Esq. at the Ziller Firm by letter dated January 28,
2004. Thereafter, the court received a letter from Mr. Ziller advising that the
Ziller Firm was no longer acting of counsel to the Shapiro Firm. According to
defense counsel, during this same time she was also trying to ascertain the
proper counsel of record for claimants.
Then, in March 2004, defense counsel received a telephone call from Michael
Fauci of the law firm of Fauci & Fauci in Endicott, New York indicating that
he would be taking over the case for claimants. On May 17, 2004, this court
received from Mr. Fauci a Substitution of Attorney form signed by counsel and
Mr. Dacus, but not Mrs. Dacus. Chambers advised counsel that the signature of
Mrs. Dacus was necessary since she was a party to the action. In the meantime,
defense counsel filed this instant motion on June 21, 2004. On June 23, 2004,
Mrs. Dacus signed the Substitution form. Then, finally, a fully signed
Substitution of Attorney form, was filed with the Clerk of the Court on July 21,
2004. Said Substitution was properly signed by both claimants, as well as the
outgoing Shapiro Firm and the incoming firm of Fauci &
In sum, as of late July 2004, new
counsel was on board for claimants and defense counsel agreed to adjourn this
motion with the aim of resolving the outstanding discovery issues between
The court was hopeful that the
involvement of new counsel would get this matter back on track. Unfortunately
such has not been the case as claimants' latest counsel have failed to respond
to this motion for reasons which are unclear.
In any event, it is well-settled that CPLR 3126 authorizes a court to penalize
a party who "[r]efuses to obey an order for disclosure or wilfully fails to
disclose information which the court finds ought to have been disclosed...."
Among the penalties that the court may impose are an order resolving in favor of
the moving party issues to which the information is relevant; an order
precluding the disobedient party from producing evidence or the things or items
of testimony being sought; an order striking the disobedient party's pleadings,
in whole or in part; an order staying further proceedings until the demanded
information is provided; or an order dismissing the action. This list is not
exhaustive and monetary sanctions may also be awarded to sanction frivolous
conduct. (Klein v Seenauth, 180 Misc 2d 213, 219). Any sanction imposed
is to be fashioned as narrowly as possible under the circumstances of each
individual case, because "[t]he overriding goal of CPLR article 31 is not
punitive but, rather, the liberal and full disclosure of all evidence which is
material and necessary or relevant to the issues to be tried [citations
omitted]." (Miller v Duffy, 126 AD2d 527, 528).
Upon review of the papers submitted on this motion, the court does not find
that claimants' failure to respond to discovery to date has risen to the level
of being "willful" or "contumacious" so as to justify the drastic relief of
dismissal. (Fitterer v Riedlinger's Towing Serv
., 271 AD2d 403, 404).
Rather, claimants' non-response appears to have been caused, at least in part,
by the confusion regarding the comings and goings of various
In any event, there is no proof of
any willfulness on the part of claimants or their counsel. Although new
counsel's failure to respond to this motion is
the court will provide claimants,
and counsel, one more bite of the apple since the confusion in late 2003 and
early 2004 between the incoming and outgoing firms was not of claimants' making.
That having been said, however, defendant is entitled to an enforceable time
line for disclosure.
Accordingly, this court will grant a conditional Order of Preclusion and
claimants will be precluded from offering any evidence at trial relative to
discovery that was the subject of this court's Preliminary Conference
Stipulation and Order dated January 28, 2004, unless within 60 days from the
date of service of a copy of this Decision and Order with notice of entry by
defendant on claimants' counsel, Fauci & Fauci, claimants serve upon defense
counsel any remaining discovery responses and/or documents and fix a date for
In view of the foregoing, it is ORDERED, that defendant's motion, Motion No.
M-68662, is GRANTED to the extent of granting a conditional Order of Preclusion
in accordance with the terms of this Decision and Order.