New York State Court of Claims

New York State Court of Claims

DACUS v. THE STATE OF NEW YORK, #2004-019-575, Claim No. 107514, Motion No. M-68662


The court grants a conditional order of preclusion.

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:
FAUCI & FAUCIBY: Michael S. Fauci, Esq., of counsel
Defendant's attorney:
BY: Greene, Hershdorfer & SharpeBeth A. Brownson, Esq., of counsel
Third-party defendant's attorney:

Signature date:
September 7, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 (6).[1]

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 thereto.[2] 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 & Fauci.[3] 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 counsel.[4] 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 counsel.[5] 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 worrisome,[6] 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 depositions.[7]

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.

September 7, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 106451, Motion Nos. M-65937 and CM-66049, filed February 21, 2003.
  2. Claim, filed March 24, 2003.
  3. Notice of Motion No. M-68662, dated June 18, 2004, and filed June 21, 2004.
  4. Affidavit of Beth A. Brownson, Esq., in support of motion, sworn to June 18, 2004, with attached exhibits.
  5. Substitution of Attorneys, filed July 21, 2004.

[1]Claimants were previously granted permission to file a late claim pursuant to CCA 10 (6) limited to Labor Law 240 (1) and 241 (6) causes of action. (Dacus v State of New York, Ct Cl, January 29, 2003, Lebous, J., Claim No. 106451, Motion No. M-65937, Cross-Motion No. CM-66049 [ UID No. 2003-019-511]). Unreported decisions from the Court of Claims are available via the Internet at

[2]Mr. Zweig signed the claim and submitted the filing fee.
[3]Defense counsel's concerns about the failure of the Ziller Firm to sign the Substitution are unfounded, since the Shapiro Firm was noted in the claim as the attorneys of record with the Ziller Firm being of counsel.
[4]Upon agreement of counsel, this motion was adjourned from July 7, 2004 to August 4, 2004.
[5]In fact, although not entirely clear on this record, it appears the Shapiro Firm may now be known as Chikovsky & Associates.
[6]Defendant's affidavit of service indicates service of these motion papers on all the named firms, including the Fauci & Fauci firm, the Shapiro Firm and the Ziller Firm.
[7]The date of the depositions does not have to be within said time period, rather claimants must agree on a date for the deposition(s) by said deadline.