New York State Court of Claims

New York State Court of Claims

SANGIACOMO v. THE STATE OF NEW YORK, #2004-032-084, Claim No. 107450, Motion Nos. M-68453, CM-68720, CM-68809


Claimant's motions for sanctions, preclusion on the grounds that defendant had responded to discovery demands in bad faith are denied. Defendant's motion for a protective order with respect to twenty notices of deposition served by claimant is granted in part and denied in part.

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):
CM-68720, CM-68809
Claimant's attorney:
Carl G. Dworkin, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kevan J. Acton, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On March 23, 2001, in Building 12 of the State Office Campus in Albany, claimant fell as he attempted to walk from the lobby to the outside, through the doorway designated for use by people with disabilities. Claimant was using crutches at the time and, as he reached down to push the button in order to open the power-operated door, it is alleged that his crutches slipped on a wet area of the floor, causing him to fall and strike his head. The State's liability is premised on its alleged failure to maintain its premises in a reasonably safe condition. In its answer, the defendant raised two affirmative defenses: claimant's culpable conduct and the culpable conduct of third parties.

Claimant now seeks to preclude defendant from presenting its case, from cross-examining claimant's witnesses and for other relief. The complaints contained in the affirmation of claimant's counsel will be briefly summarized. Defendant, claimant's counsel states, has failed to meet two discovery deadlines that were imposed by the Court and several other discovery deadlines imposed by claimant's counsel at the time the demands were served. In response to claimant's first (of four) sets of discovery demands, counsel for defendant stated, on information and belief, that there had been no report of another fall in the area where claimant fell within the past 18 years. Claimant's counsel contends that this statement was false and made in bad faith because defendant produced, in a response to the second set of discovery demands, several Unusual Incident Reports relating to Building 12. In addition, claimant's counsel complains that a State employee, who located the Unusual Incident Reports, testified at a deposition that he had not personally gone through the file where they were located but had his secretary perform that job.[1] Counsel asserts that his client is being "severely prejudiced" by being denied relevant discovery and because considerable resources must be expended to seek defendant's compliance with its disclosure obligations (id., ¶¶ 29, 30).

The object of this motion, as claimant's counsel states it, is to address the State's "pattern of misconduct" by: 1) striking all defenses, 2) precluding defendant from presenting evidence at trial, 3) precluding defendant from conducting cross-examination, and 4) granting judgment in claimant's favor on the issue of liability (id., ¶34). Counsel should be aware that striking affirmative defenses as a form of "punishment" is not available to litigants in this Court, as he was the attorney in another case in which he requested similar relief and was denied (Firth v State of New York, #2001-015-139, Claim No.103492, Motion No. M-63029, April 10, 2001, Collins, J.). Nor can there be a judgment against the State based on anything other than "such legal evidence as would establish liability against an individual or corporation in a court of law or equity" (Court of Claims Act §12[1]), so a default judgment in the traditional sense, is not available in this Court.

In opposition to the motion, defense counsel states that claimant has served four sets of requests for documents and information and that defendant has provided responses to all of them. The response to the request for information about other incidents in the area where claimant fell is accurate, he states, as none of the Unusual Incident Reports subsequently produced related to events at that location (Acton affirmation, ¶8). Defendant also addresses the assertion that documents were not sought in the proper location by submitting the affidavit of Joseph Robilotto, who works in the Office of the Inspector General of the Department of Labor and who personally made a search through the Office's database, turning over all remotely relevant Unusual Incident Reports.

Cross-Motion No.CM-68720: By this cross-motion, defendant seeks a protective order to strike the notices of deposition that claimant's counsel has served. Defendant originally produced for deposition two individuals, Eric Holm and State Trooper Carpenter, both of whom were witnesses to some portions of the incident in which claimant was injured. Subsequently, claimant has noticed a total of twenty additional individuals ( including a "Jane Doe" and a "John Doe)." Defense counsel states that claimant does not have the right to notice additional witnesses and must apply to the Court for permission to depose additional State employees. In addition, he states that claimant has "made no showing of the substance, relevance or materiality" of the testimony these witnesses might provide (Acton affirmation, ¶4).

Cross-Motion No. CM- 68809: The affidavit of claimant's counsel in support of this motion does not specifically ask for new relief but, instead, continues the litany of complaints and allegations of wrongdoing on the part of defense counsel. Very inappropriately, he drops the title "Mr." and refers to defense counsel only by his last name throughout the 10 page affirmation.
There is little need for extended discussion of these motions. If the angry accusations and characterizations made by claimant's counsel are removed and one focuses only on the actions and events described, what has occurred here is a fairly typical account of discovery during the first period of time after a claim is filed. The Court is aware that deadlines which are set before demands have been served are often unrealistic and require adjustment. In addition, when one is undertaking discovery from an extremely large, subdivided entity such as the State, it frequently takes longer to produce materials than it would if the defendant were an individual or a small business. If there is any specific event that appears to have significantly prolonged discovery, it would be the decision of claimant's counsel to discontinue the deposition of the State employee, Eric Holm, simply because claimant's counsel did not approve of his having delegated the task of looking for reports to his secretary. There is certainly no inherent problem in someone delegating a rather straightforward task to one of their subordinates, and certainly this provides no basis for ending a deposition abruptly. Consequently, claimant's motions for preclusion and sanctions will be denied without further discussion.

With respect to examinations before trial that claimant has noticed, the number of potential witnesses appears to be excessive for what is a fairly routine slip and fall claim. From the notes made by claimant's counsel about the reasons these witnesses might be needed (Dworkin affirmation, Exhibit C), it also appears that a number of them would either have only minimal knowledge of events surrounding claimant's injury or have information that wasn't cumulative.
Plaintiffs do not have the unfettered discretion as to whom they may depose, for it is the right of the municipality to determine which of its officers with knowledge of the facts underlying the litigation may appear for pretrial examination. It is only when it becomes apparent that the knowledge of the proffered official or officials is inadequate to produce testimonial and documentary evidence material and necessary to the prosecution of the action that plaintiffs may petition the court for production of additional witnesses.
(D'Ulisse v Town of Oyster Bay, 81 AD2d 825, 826 [2d Dept 1981] ; see also Colicchio v City of New York, 181 AD2d 528, 529 [1st Dept 1992]). This method of proceeding is applicable to other governmental entities, including the State.

In light of the aminus that claimant's counsel appears to have toward his opponent, the Court will exercise its inherent power to oversee and supervise discovery (CPLR 3103, 3104) by directing the following:
• abBoth counsel are to provide the Court with a written statement of all outstanding discovery of which they are aware at this time.

• abEach counsel will list those individuals whom he seeks to depose and include a statement as to the reasons why the person's testimony will be material and relevant to the claim. This list should also prioritize the proposed deponents, with the most critical or important ones listed first.

That information should be submitted to the Court, with a copy to opposing counsel, on or before November 15, 2004. In addition,
• abCopies of any future discovery demands or notices will be served on Chambers at the same time that they are served on the opposing party. This is in addition to the original and copies that are to be filed with the Clerk of the Court.

Claimant's Motion No. M-68453 and Cross-Motion No. CM-68809 are denied. Defendant's Cross-Motion No. CM-68720 is granted to the extent set forth above.

September 29, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to strike all defenses, to preclude the State from introducing evidence at trial or conduct cross-examination, and for summary judgment in favor of claimant (Motion No. M-68453); on defendant's cross-motion to strike claimant's notices of deposition (Cross-Motion No. CM-68720); and on claimant's cross-motion for sanctions (Cross-Motion No. CM-68809):

1. Notice of Motion No. M-68453 and Supporting Affirmation of Carl Dworkin, Esq., with annexed Exhibits

2. Notice of Cross Motion No. CM-68720 and Supporting Affirmation of Kevan J. Acton, Esq., with annexed Exhibits, affidavit of Joseph Robilotto, and memorandum of law

3. Notice of Cross-Motion No. CM-68809 and Supporting Affirmation of Carl Dworkin, Esq., with annexed Exhibits

Filed papers: Claim; Answer

[1] When this response was given, claimant's counsel "discontinued the deposition" in order to ask the Court for relief (Dworkin affirmation, ¶ 24).