New York State Court of Claims

New York State Court of Claims

DeLEON v. THE STATE OF NEW YORK, #2004-033-098, Claim No. 105848, Motion No. M-69151


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:
Pollack, Pollack, Isaac & DeCicco, Esqs.
By: Brian J. Isaac, Esq., Special Counsel toEdelman, Krasin & Jaye, PLLC
Defendant's attorney:
While, Quinlan & StaleyBy: Joanne Emily Bell, Esq.
Third-party defendant's attorney:

Signature date:
December 17, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion by defendant to preclude claimant's expert for failure to disclose the expert pursuant to CPLR 3101(d) and in violation of this Court's Order of September 9, 2003[1]. The claim arises from the injuries sustained by John DeLeon (hereinafter "claimant") as the result of the alleged negligence of defendant, the State of New York, in failing to adequately provide a safe work zone in violation of Labor Law §§200 and 241(6).[2]
Defendant argues that on September 9, 2003, a conference was held to schedule a trial in this matter. As a result of the conference an Order was issued[3] which stated:
Claimant to serve Supplemental Bill of Particulars by September 30, 2003. Summary Judgment Motion to be filed by November 30, 2003. Expert disclosure by December 27, 2003. Note of Issue waived. Trial to be held on January 27, 2004 at 9:30 a.m.

Defendant posits that the conference was extensive as to the question of disclosure of experts by each of the parties, and defendant made its desire known that it needed claimant's expert disclosure as soon as possible. According to defendant, the December 27, 2003 date passed with no expert disclosure from the claimant. In fact, the first disclosure of any type as to claimant's expert was the expert's affidavit given in support of claimant's papers in regard to the summary judgment motion. The papers in opposition to defendant's motion were served on or about January 20, 2004. To date, defendant states that it has not received a disclosure for claimant's expert pursuant to CPLR 3101(d).

In opposition, claimant acknowledges that the expert disclosure was not server prior to December 27, 2003, but defends this error. Claimant argues that pursuant to an Order of June 23, 2002, defendant was to provide discovery pursuant to a Discovery and Inspection Notice by October 15, 2002. Claimant argues that a letter was sent to defendant on May 19, 2003, requesting that the outstanding discovery be provided. Claimant's expert was present at the office of the NYS Department of Transportation (hereinafter "DOT") on May 27, 2003 to inspect DOT records. Claimant made additional discovery and inspection requests on July 18, 2003 at the deposition of two State witnesses. On August 19, 2003, claimant made requests for more documents. Claimant states that on September 9, 2003, he was given a box containing thousands of pages by defendant in response to discovery and inspection requests. On September 11, 2003, claimant received additional plans and contracts from defendant. Claimant argues that it then took until January 20, 2004 for claimant's expert to review materials sufficient to provide an affidavit in opposition to defendant's motion for summary judgment.

Claimant's counsel, Mr. Isaac, states that he was unaware of the Order to provide expert disclosure by December 27, 2003. Therefore, claimant's position is that the failure to provide the expert disclosure was nothing more than a technical oversight (Affirmation of Isaac). Claimant argues that the failure to provide the disclosure was not willful or contumacious and thus, should be excused.

The Court is mindful that the case before it is one which concerns highway negligence, specifically, the safety of a construction zone on a highway. Therefore, the parties will each need to rely upon an expert to meet their burdens of proof. With this in mind, the Court will examine the history of discovery as it pertains to claimant's opposition to defendant's motion.

On July 23, 2002, this matter was assigned to then Presiding Judge Susan Read.[4] Counsel for both parties were present at the conference. Contrary to claimant's assertion, the Order indicated that claimant was to appear at DOT to do discovery and inspection of documents by August 30, 2002.[5] Three additional conferences were held: December 3, 2002, April 8, 2003, and September 9, 2003.[6] Problems concerning discovery and inspection of DOT materials were not raised at any of these conferences. In addition, a search of the Court's files reveals no correspondence from claimant's counsel indicating a problem with obtaining DOT materials. A conference was to have been held on August 5, 2003, however, claimant's counsel phoned and requested an adjournment of the conference on July 14, 2003. Counsel indicated that his search of DOT records was not yet complete as were depositions of defense witness.[7] This was the first telephone call from counsel seeking permission to adjourn the conference. Given counsel's history (see footnote 6), he was granted an adjournment of the conference to September 9, 2003, with the proviso that if he had not completed his discovery and inspection of DOT records and depositions, then these items would be deemed waived by the Court.

At the conference on September 9, 2003, the Court was informed that discovery was completed with the exception of the need for claimant to supplement its Bill of Particulars.[8] In addition, an extensive exchange took place concerning the timing of expert disclosure by the parties. Defendant's counsel vehemently objected to the simultaneous exchange of the expert disclosure. Claimant's counsel, however, was equally adamant that the simultaneous exchange was equitable to both parties. The Court ordered for the simultaneous exchange of expert disclosure to occur by December 27, 2003.

Prior to this motion, defendant asked this Court to preclude claimant's expert. As mentioned, defendant filed a motion for summary judgment. In claimant's opposition papers (filed January 20, 2004), claimant presented an expert affidavit with an opinion as to the State's negligence. In reply papers, defendant raised the issue presently before the Court, namely, that claimant's expert disclosure had not been served pursuant to the September 9, 2003 Order. On February 27, 2004, Claimant's counsel (Mr. Isaac), faxed a letter to the Court. The letter gave legal argument against the preclusion of his expert. The only argument presented as to the delay in the disclosure was that Mr. Isaac was not aware of the deadline.

In its decision (M-67724), the Court denied defendant's request to preclude the claimant's expert with leave to renew its application prior to trial.[9] The Court clearly stated that claimant would have an opportunity to establish good cause for its delay.

In relevant part, CPLR 3101(d)(i) states:
Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. [Emphasis Added]
As is clear from CPLR 3101(d)(i), there is no particular time at which expert exchanges must be made. The Second Department has held that "unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party," preclusion is improper. (Young v Long Island University, 297 AD2d 320).

The Court finds that the failure of claimant to provide expert disclosure to defendant is intentional and willful. The Court makes this finding based upon claimant's history in this matter and the misstatements contained within the present affirmation opposing defendant's motion.

While CPLR 3101(d)(i) does not provide a particular time frame to exchange expert disclosure, this Court ordered that the exchange take place by December 27, 2003. Mr. Isaac's statement that he was not aware of this date is not accepted. This Court held a conference on September 9, 2003, at which time the date was ordered. Seth Fields of Edelman, Krasin & Jaye was present at the conference and assured the Court the disclosure would be done. A lack of communication between claimant's attorney and Mr. Isaac, as trial counsel, is not a sufficient excuse.

Mr. Isaac was certainly aware when defendant filed its Reply Affidavit to the summary judgment motion that his disclosure was late (as evidenced by his February 27, 2004 letter to the Court). Ten months have passed since Mr. Isaac acknowledged being aware of the deadline. Nearly one year has passed since the deadline imposed by the Court and claimant still has not provided expert disclosure to defendant. As previously mentioned, the Court accepted claimant's expert affidavit for purpose of the summary judgment only. The decision was filed by the Clerk's Office on June 30, 2004. In the six months since the filing of that decision, claimant has not provided expert disclosure to defendant. Claimant's expert exchange is not late, it is non-existent and in violation of this Court's Order.

There are further reasons for the Court to find this failure as intentional and willful. First, claimant misstates what took place at the July 23, 2002 conference concerning discovery and inspection. Next, in his opposition papers, Mr. Isaac misstates that no date has been scheduled for the trial of this matter. Presently, this matter is scheduled for trial March 7 - 9, 2005.

The Court also finds no credibility to Mr. Isaac's statements concerning the documents being provided too late. Defendant's Affirmation in Reply makes it clear that claimant controlled the timing of the release of the documents. The only reason claimant did not have the bulk of the documents at an earlier date is the failure to pay for the copies.[10] In July 2003, when counsel contacted the Court, the Court was told that claimant was behind in completing its inspection of the DOT materials.

In addition to the foregoing, claimant has a history of ignoring this Court's orders. As previously detailed, each of the Court's orders concerning depositions was ignored. At no time, despite repeated admonishments, did claimant seek the Court's permission to extend a deadline prior to their expiration.

The issue before this Court is not just the late exchange of expert disclosure but also the willful and intentional disobedience of this Court's Order of September 9, 2003. To allow claimant to provide expert disclosure at this time would not only prejudice the State, but would condone claimant's contempt and disregard of judicial orders. The Court finds that allowing claimant to provide expert disclosure would be prejudicial to the State in that claimant has had the defendant's disclosure for a year and would have the benefit of the defendant's disclosure in preparing its own case and expert opinion. An adjournment of the trial to allow defendant to fashion a "rebuttal" opinion is unworkable. Given the Court's trial schedule, this matter would not be able to be tried until nearly two years after the original 2004 trial date.

Based upon the foregoing, defendant's motion precluding claimant's expert is granted.

December 17, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on defendant's motion: Notice of Motion dated September 22, 2004 and filed September 27, 2004; Affirmation in Support of Joanne Emily Bell, Esq. with annexed Exhibits A-E dated September 23, 2004 and filed September 27, 2004; Affirmation in Opposition of Brian J. Isaac, Esq. with annexed Exhibits A-C dated October 20, 2004 and filed October 22, 2004; Reply Affirmation of Joanne Emily Bell, Esq. with annexed Exhibits F-J dated October 22, 2004 and filed October 25, 2004.
[2]The facts of claimant's accident were detailed in the Court's decision denying summary judgment (M-67724; Defendant's Exhibit A).
[3]The Court issued a "Daily Report", which according to Rule 206.10(d) of the Uniform Rules for the Court of Claims, has the force and effect of an Order of the Court.
[4]At the time Judge Read had calenders of cases in Albany, New York City and in Hauppauge. This matter was heard in Hauppauge.
[5]The Order also indicated that claimant was to request a Bill of Particulars and a request for Combined Demands by August 30, 2002. Defendant was to respond to these items by October 15, 2002.
[6]On January 13, 2003, the case was transferred from then Presiding Judge Read to this Court.
[7]The depositions of the defense witnesses had previously been ordered: on July 23, 2002 to be held by November 30, 2002; on December 3, 2002 to be held by March 31, 2003; and, on April 8, 2003 to be held by May 30, 2003. Claimant's counsel repeatedly came to conference without having accomplished what had been ordered by the Court. Counsel was repeatedly warned to seek the permission of the Court if the deadlines needed to be extended. However, counsel never called prior to the expiration of any of the deadlines passing.
[8]The Court ordered that this be done by September 30, 2003.
[9]The decision specifically stated that the affidavit of claimant's expert was being considered only for purposes of the summary judgment motion. The Court did not accept the affidavit in satisfaction of claimant's responsibility of providing expert disclosure.
[10]The Court notes that Mr. Isaac made no complaint concerning when he obtained the documents in his letter of February 27, 2004.