New York State Court of Claims

New York State Court of Claims

NORTH BAILEY v. STATE OF NEW YORK, #2004-034-577, Claim No. 104177, Motion No. M-67988


Claimant's motion to compel discovery or preclude is granted, in part. Defendant shall produce the regional appraisal reviewer, now retired, for deposition or be precluded from calling him at trial. Defendant's expert-employees will be allowed to testify. Their reports and opinions provided during discovery shall be deemed expert disclosure pursuant to Rule 206.21 (c).

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:
Defendant's attorney:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has moved to compel discovery or preclusion concerning two matters. The following papers have been submitted for review:

1. Claim, verified April 12, 2001, filed April 25, 2001;

2. Notice of Motion to Compel and/or Preclude, dated January 29, 2004, filed February 2, 2004;

3. Affirmation in Support of Motion to Compel and/or Preclude of Jill L. Yonkers, dated January 29, 2004, with attached exhibits;

4. Opposing Affidavit to Claimant's Motion to Compel and/or Preclude of Richard B. Friedfertig, sworn to February 11, 2004, filed February 13, 2004, with attached exhibit.

This is a claim to recover damages arising from the appropriation of real property for the expansion of Route 62, Bailey Avenue, in the Town of Amherst, pursuant to a map (Map No. 24) filed in the Erie County Clerk's Office on March 30, 1999. The claim was filed on April 25, 2001, and discovery thereafter ensued, extending to the deposition of four current or retired employees of the Department of Transportation (DOT): Kenneth Kuminski, an engineer who served as manager for the Bailey Road project; John Puzan, the engineer in charge of the project; Michael Christner, a landscape architect; and Christine Schneegold, a right-of-way agent. Claimant also served a notice to conduct a deposition of another retired DOT employee, Justin "Judd" Meegan, who had worked as the Regional Appraisal Reviewer at the time Defendant tendered an advance payment to Claimant in the matter.[1] Claimant now seeks to compel the deposition of Mr. Meegan, or to preclude Defendant from producing the retired employee at trial. From the submissions it appears that Claimant intends to use the deposition to explore the DOT's basis for its valuation, and the extent to which that valuation had considered possible valuations of the American with Disabilities Act (ADA), in part to assist in its anticipated application for an additional allowance pursuant to EDPL § 701. Defendant, in turn, has represented that Mr. Meegan did not evaluate whether any ADA violations existed, or determine any costs to cure such violations. Defendant further contends that the question of whether any agent of the State had considered the ADA or costs to cure in its initial review and payment to Claimant is irrelevant in a section 701 application.

Claimant is entitled to full disclosure of all matters "material and necessary" in the pursuit of its cause of action (CPLR 3101 [a]). That phrase is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]). Here, even under a liberal interpretation Mr. Meegan's testimony would not be material or useful in Claimant's ADA-related inquiries, or costs to cure such purported violations. I also agree that the advance payment offered by the State would not be relevant to the issue of market value at trial (see Lieberthal v State of New York, 22 AD2d 831, 833 [1964], affd 16 NY2d 1012 [1965][payments advanced by State are without prejudice to rights of parties in subsequent trial]). While the offer of payment would bear on a potential section 701 review, the factors considered by the State in reaching that offer are irrelevant to such a discretionary fee application. Rather, section 701 requires two determinations before a fee award is considered: first, whether the award is "substantially in excess of the amount of the condemnor's proof" and second, whether the court deems the award necessary "for the condemnee to achieve just and adequate compensation." Consideration of the "comparative reasonableness" of the parties' violations in such a review is not an abuse of discretion (see Hakes v State of New York, 81 NY2d 392, 398 [1993]), yet even that analysis focuses on the discrepancies in the valuations themselves, and not any arguable failings in reaching those determinations.

In light of the above it is puzzling that Defendant also has urged that Mr. Meegan should not be precluded from testifying at trial concerning issues unrelated to those addressed in the course of this motion. Understanding that to date neither party has identified any area of anticipated testimony that would bear on the controversy itself, or otherwise assist in trial preparation, I simply will not allow Mr. Meegan to be produced as part of Defendant's direct case without affording Claimant the opportunity to conduct a deposition. I will grant Claimant's application to the extent of directing that Mr. Meegan either be produced for a deposition on matters within his knowledge, and bearing on the claim, or be precluded from testifying at trial.

I will now address Claimant's second request for relief.

Citing 22 NYCRR 206.21 (h) the condemnee also has sought to preclude Defendant from the use at trial of any nonvaluation expert testimony, except as admissible under Court of Claims Act § 16. In that regard Claimant has noted that the State failed to comply with the requirement within 22 NYCRR 206.21 (c) that an original and three copies of any reports for nonvaluation experts intended to be relied upon at trial be filed at the same time and in the same manner as its appraisal report. It is undisputed that Defendant did not file any expert report in this matter with its appraisal report, despite the grant of several extensions.

In opposing preclusion Defendant contends that, notwithstanding its failure to file expert reports, it did serve Claimant with documentary discovery that extends to matters upon which Mr. Kuminski and Mr. Christner might potentially offer expert testimony. Defendant also has noted that since its intended nonvaluation experts are employees of the State, Claimant has been able to depose those witnesses, a discovery device not generally available for a nonemployee expert. From the submissions, however, I cannot determine the degree to which either employee's opinions, and the bases therefore, are set forth in the suggested reports. Additionally, while Defendant's arguments concerning the extent of discovery may weigh on the issue of prejudice, the State has failed to provide any explanation for its noncompliance with the clear requirements of section 206.21 (c), or other justification for the grant of late filing relief. The parties received four extensions of the time within which to make their filings under section 206.21. The last extension, from June 3, 2002, to October 3, 2002, occurred solely at the request of the State. Although those applications focused on the completion of appraisals, rule 206.21 (c) clearly directs that a party intending to rely upon a nonvaluation expert at trial must file that expert's report within the same time and in the same manner as provided for appraisals. The requirements of that rule are derived from CPLR 3140, and are more specific than the expert disclosure provisions set forth within CPLR 3101 (d).

Defendant's failure to explain its noncompliance or justify its application runs afoul of rule 206.21 (g) (3), which allows for relief from such a default "on notice showing unusual and substantial circumstances" (see Dufel v State of New York, 187 AD2d 792 [1992]). The standard for relief in such matters has long been recognized as "a rigid one and requires strict enforcement so that the purpose of the rule is not subverted" (Hogan v State of New York, 43 AD2d 876 [1974] [addressing the requirement within former 22 NYCRR 1200.27 (d) (2) of "unusual and substantial circumstances, which if not remedied would cause undue hardship"]). That requirement has been recognized as having several purposes, including the timely resolution of matters and avoidance of any advantage to a party from a delayed action to permit review of the opponent's submissions (see Reda v State of New York, 62 Misc 2d 244, 246 [1970][addressing former 22 NYCRR 1200.27 (a)]). The grant of a late filing of an expert's report herein would work an unfair advantage to the State, even if tempered to some extent by the discovery that Claimant previously conducted.

Based upon the foregoing I will not allow an expert report to be prepared and filed at this time. Nevertheless, as an exercise of discretion I will grant some limited relief to Defendant (see Gustafson v State of New York, 56 AD2d 695 [1977]). To the extent the State has tendered reports in the course of discovery that embody the expert opinions upon which Mr. Christner and Mr. Kuminski are expected to testify, as well as some foundation for such opinions, and which were prepared by or directly attributed to those witnesses, I will deem those reports to have been tendered in substantial compliance with Defendant's obligations under rule 206.21 (c). In so doing, however, I caution defense counsel to deem this decision and order as a notice, rather than a precedent for any future application for relief from employee expert discovery requirements.

Based upon the foregoing, it is

ORDERED, that Claimant's motion for conditional preclusion of the testimony at trial of Justin "Judd" Meegan is granted, such that Defendant is to produce the witness for a deposition, subject to the limitations set forth above, at a time and date to be agreed upon by the parties, within 60 days of the date of filing hereof, or be precluded from calling him as a witness at trial; and it is further

ORDERED, that except to the extent Defendant served reports in the course of discovery that reflect the opinions of Mr. Christner or Mr. Kuminski, and subject to the provisions set forth above, Claimant's motion for preclusion of defense expert testimony concerning matters other than valuation, or other evidence admissible under section 16 of the Court of Claims Act, is granted; and it is further

ORDERED, that Defendant's request to late file an expert report or reports is denied.

September 30, 2004
Buffalo, New York

Judge of the Court of Claims

[1] Claimant's reference to a purported order (NeMoyer, J.) granting permission to conduct discovery extending to the deposition of Mr. Meegan appears to be in error.