New York State Court of Claims

New York State Court of Claims

PHELAN v. THE STATE OF NEW YORK, #2004-032-073, Claim No. 105128, Motion Nos. M-68236, M-68372


Claimant's motion for mistrial and defendant's motion for sanctions are denied.

Case Information

KEVIN J. PHELAN, as Administrator of the Goods, Chattels and Credits of NANCY PHELAN, Deceased, WILLIAM R. PHELAN, an Infant by his Parent and Natural Guardian KEVIN J. PHELAN, and KEVIN J. PHELAN, Individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-68236, M-68372
Cross-motion number(s):

Claimant's attorney:
Gordon, Siegel, Mastro, Mullaney, Gordon & Galvin, P.C.By: Christine M. Galvin, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Frederick H. McGown, III, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 27, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is an action for the wrongful death and conscious pain and suffering of the decedent, Nancy Phelan, who fell while riding her bicycle on a road within Thompson's Lake State Campground and passed away thereat in the presence of one of her children. A cause of action for the negligent infliction of emotional distress is also alleged on behalf of the child who witnessed his mother's death. A non-jury unified trial of this action was conducted from

March 8 - March 12, 2004. At the conclusion of trial, claimants moved for a mistrial and the appointment of a new judge due to the alleged perjurious testimony at trial of State Police Trooper Gaba, Thompson's Lake State Park's Manager Christopher Fallon, and defendant's bicycle expert James Green. Claimants also requested, as part of the motion, that these three witnesses be precluded from testifying at a future trial and that costs and sanctions be imposed upon the defendant. Defendant filed an affirmation in opposition to claimants' motion and its own motion seeking sanctions and costs against claimants and a retaliatory motion seeking preclusion of claimants' expert's testimony.

The roots of the mistrial motion stem from the initial displeasure of claimants' counsel with defendant's CPLR 3101(d) expert disclosure for Mr. Green, a bicycle expert. In late September 2003, expert disclosure statements were filed with the Court. In October 2003, claimants' counsel asked permission to file a supplemental expert response to defendant's notice that Mr. Green would be called as an expert witness. Counsel for defendant agreed to accept this supplemental response, and it was filed on October 20, 2003, indicating that claimant expected to call Dr. James Pugh to rebut the testimony of defendant's expert James Green.

Claimants' counsel identified the subject matter of Dr. Pugh's testimony as follows:
"The usage of an approved bicycle helmet would not necessarily have prevented the decedent's fatality due to the particulars of the construction of helmets, the compliance mandates of various standards, and the particulars of the accident and head injuries sustained. Defendant's expert disclosure response fails to set forth any facts about which Mr. Green will testify on this subject, or the grounds for his opinion. Dr. Pugh will testify in rebuttal to any fact or opinion testimony of Mr. Green allowed by the Court at the time of trial."
(Claimants' Supplemental Response to Various Discovery Demands dated October 20, 2003,

¶ 4).

Defense counsel, who had agreed to the extension of this supplemental filing, reported that he was dismayed to learn that it was partially critical of defendant's disclosure, as no objection had been raised previously or at the time that claimants' counsel sought his agreement to her belated filing. Defendant filed a supplemental disclosure on behalf of Mr. Green on October 27, 2003. Mr. Green, who resides in Florida, did not examine the bicycle until the week before trial. A second supplemental response regarding his testimony was filed on March 3, 2004.

On the first morning of trial, claimants' counsel made a motion to preclude defendant's bicycle expert, James Green, from testifying because the initial and first supplemental expert responses were vague and the second supplemental response contained "new opinions involving Mr. Green's eleventh-hour inspection of the bicycle" (Affidavit in support of Motion No. M-68169 [motion to preclude], ¶14). Counsel never fully explained to the satisfaction of the Court how Mr. Green's disclosure was prejudicial to her client. Nor did she explain why she waited six months to commence a formal motion for preclusion after receiving the initial and first supplemental expert responses. In the accompanying memorandum of law, counsel argued that the second supplemental expert response had not been considered in her preparation for trial and that she "has retained no expert to rebut the same" (Claimants' Memorandum of Law in Support Motion No. M-68169, dated March 8, 2004). This is confusing because in her letter to the Court dated October 21, 2003, she stated that she had consulted an expert, Dr. Pugh, to rebut Mr. Green's testimony, and as noted, she submitted a §3101(d) response with respect to this expert.

On the second day of trial, the Court denied the motion to preclude in its entirety[1] with the caveat that the Court would allow the claimants' expert to testify[2] at a later date after he had ample time to re-examine the bicycle and research the second supplemental statement from Mr. Green. Claimants' counsel did not avail herself of this remedy but instead chose to continuously object throughout Mr. Green's testimony during trial and, at the end of trial, made the instant motion for a mistrial based on allegations that Mr. Green's testimony had inconsistencies that were "not only fraudulent, but perjurious, to an extent which contaminated the entire trial" (Galvin affidavit, Motion for a Mistrial, ¶17). In addition, claimants' counsel reminded the Court that the Court was duty bound to protect the infant claimants' interest and that Mr. Green's misconduct as an expert deprives them of a fair trial (id., ¶30). She further requested that not only should a mistrial be declared, but that this Court should preclude Mr. Green from testifying at the next trial before another judge. Claimants' counsel requested this same relief for the alleged perjurious inconsistent statements, between the trial testimony and examination before trial testimony of Christopher Fallon, the park manager of Thompson's Lake State Park.

The third branch of this motion for a mistrial concerns a document that appeared for the first time at trial. During discovery, claimants had requested a copy of any bicycle inspection report, including one prepared by Trooper John Gaba that was referred to in a New York State Police Accident Report (Claimants' Supplemental Demand for Discovery and Inspection dated September 19, 2002). Defendant responded with an affidavit from Trooper Gaba[3] that he never completed a formal report on the condition of the bicycle (Defendant's Response to Supplemental Demand for Discovery and Inspection dated October 24, 2002). At trial, however, when defense counsel attempted to introduce certified records from the New York State Police, they contained what appeared to the Court and claimants' counsel to be a report filed by Trooper Gaba. Defense counsel, who had not previously seen this document, has stated that this "report" was actually "a lead worksheet" which in State Police jargon is not considered a report. Claimants' counsel, however, maintained that it was in fact a report and its existence made the previous affidavit stating that he had not prepared a formal report or an accident reconstruction report regarding this accident perjurious. The document was not received into evidence at trial, and the Court directed defense counsel to report what appeared to be perjury to the proper authorities.[4] In her motion for a mistrial, claimants' counsel argues that claimants were prejudiced by the failure to disclose this report since she did not have it to prepare for trial. After the trial, both counsel were invited to suggest any steps to obviate any possible prejudice to claimants (e.g., sharing the document, a deposition of Trooper Gaba, a continuance of trial), but the only request by claimants' counsel was a mistrial.

Claimants' competent counsel is a seasoned trial attorney with broad experience before juries. However, in a non-jury trial, it is the trial court's duty to decide the factual questions, including credibility, which are normally within the province of the jury (Brooks v Cheon, 142 AD2d 867 [3d Dept 1988]). This Court regularly assesses trial testimony in light of the witnesses' prior testimony, contradiction of testimony among witnesses, as well as the demeanor and character of witnesses. Inconsistent statements from any witness will be assigned the appropriate weight by the Court in its deliberation of this case on the merits. Although claimants' counsel may not be comfortable in the Court of Claims where trials proceed without a jury, short of a constitutional amendment, this Court is the only forum in which the State can be sued for money damages.

The decision to grant or deny a mistrial rests within the sound discretion of the trial court, and such drastic relief is warranted only where the misconduct has permeated the trial and destroyed the moving party's ability to obtain a fair trial (CPLR 4404[b]; Torres v City of New York, 306 AD2d 191 [1st Dept 2003]), citing to DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 198 [1992]; McNamara v Hittner, 2 AD3d 417 [2d Dept 2003]). A mistrial is sometimes an inappropriate remedy, because it does waste judicial resources (Osterhoudt v Wal-Mart Stores Inc., 273 AD2d 673 [3d Dept 2000]). Where a surprise has occurred at trial, sometimes the most appropriate remedy is a mere continuance if the defect does not induce bias and any prejudice can be cured by granting additional time to the party that was surprised (Siegel, N.Y. Prac. [3d ed], §403).

This was a non-jury trial, and the document prepared by Trooper Gaba concerning the bicycle was not received into evidence or read by the Court.[5] Claimants' counsel was offered more time after trial for a continuance to correct any possible prejudice from her nonreceipt of the document apparently authored by Trooper Gaba, but she declined such offer. Counsel's rather stark allegations regarding the alleged perjurious testimonies of Mr. Green and Mr. Fallon are rather dramatic and entirely without merit. Their testimonies will be weighed by the Court in its decision on the merits. Consequently, claimants' motion for a mistrial, sanctions and costs is denied. Defendant's motion for sanctions and costs, as well as preclusion of the testimony of claimants' expert, is also denied. Counsels are directed to contact the Court for a post-trial briefing schedule.

September 27, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimants' motion for a mistrial and other relief (Motion No. M-68236) and on defendant's motion for sanctions and preclusion (Motion No. M-68372):
1. Notice of Motion M-68236 and Supporting Affidavit of Christine M. Galvin, Esq., with annexed Exhibits

2. Notice of Motion No. M-68372 and Supporting Affirmation and Affirmation in Opposition to claimants' motion of Frederick H. McGown, III, Esq., AAG with annexed Exhibits

3. Affidavit in Opposition of Christine M. Galvin, Esq., with annexed Exhibits

Filed papers: Claim; Answer; submissions and decision and order in Motion No. M-68169

[1] Decision and Order on Motion No. 68169, dated March 9, 2004, filed March 12, 2004. Claimants' counsel maintained at trial that the Court did not address all of her arguments in such motion. She is respectfully directed to the last paragraph of the Court's decision that denies the motion in its entirety.
[2]Claimants' counsel had disclosed two experts that possibly would testify at trial concerning the accident, Alan Gonseth, a civil engineer and James Pugh, a helmet expert (Supplemental Response to Various Discovery Demands, dated October 20, 2003).
[3]Trooper Gaba was not called as a witness.
[4]Defense counsel did report the incident to the State Police, which proceeded with its own inquiry into the matter. A sealed copy of the State Police findings were conveyed to the Court at the conclusion of that inquiry and counsel were offered the opportunity to review it and incorporate its findings, whatever they were, into their submissions on this motion. Defense counsel, who had not seen the document, was agreeable to any course of action, while counsel for claimants strongly rejected the suggestion that it be considered. The State Police findings, still sealed, were returned to the agency. During trial the Court believed that Trooper Gaba had perjured himself, but this conclusion is now uncertain given the requirements of perjury under Penal Law §210.40.
[5]At trial, the Court checked only the date and name of its preparer.