DeLEON v. THE STATE OF NEW YORK, #2004-033-098, Claim No. 105848, Motion No.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JAMES J. LACK
Pollack, Pollack, Isaac & DeCicco, Esqs.
By: Brian J. Isaac, Esq., Special Counsel toEdelman, Krasin & Jaye, PLLC
While, Quinlan & StaleyBy: Joanne Emily Bell, Esq.
December 17, 2004
See also (multicaptioned
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
. 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
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
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
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
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
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
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.
Three additional conferences
were held: December 3, 2002, April 8, 2003, and September 9,
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.
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
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
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.
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
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
Hauppauge, New York
HON. JAMES J. LACK
the Court of Claims
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.
The facts of claimant's accident were detailed
in the Court's decision denying summary judgment (M-67724; Defendant's Exhibit
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.
At the time Judge Read had calenders of cases
in Albany, New York City and in Hauppauge. This matter was heard in Hauppauge.
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.
On January 13, 2003, the case was transferred
from then Presiding Judge Read to this Court.
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
The Court ordered that this be done by
September 30, 2003.
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.
The Court notes that Mr. Isaac made no
complaint concerning when he obtained the documents in his letter of February