New York State Court of Claims

New York State Court of Claims

DISPENZA v. THE STATE OF NEW YORK, #2005-013-009, Claim No. 106350, Motion No. M-69813


Paint-marked clothing worn at the time Claimants' motorcycle allegedly slipped on wet paint shall be held at the Court of Claims, allowing equal access to both parties, and their experts, for inspection and photographing. Any testing of the clothing requires the Court's written approval.

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:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 11, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


On March 16, 2005, the following papers were read on motion by Defendant for an order directing Claimants to turn over certain items to the Court for keeping until the trial, and related relief:

Notice of Motion, Affirmation and Exhibits Annexed

Opposing Affidavit and Exhibits Annexed

Upon the foregoing papers the motion is granted to the extent noted.

In this motion Defendant seeks to have the Claimants turn over to the Court Claimants' paint-marked clothing "for purposes of granting equal and timely access to both parties and their experts at any time prior to trial for inspection and photographing and permitting any testing subject to further Court order (CPLR §3124).[1]

According to the Defendant, the dispute here is that Claimants refuse to allow the clothing in question to leave their attorneys' offices. The claim herein is based in part upon allegations that wet paint upon an edge line was allowed to remain on a roadway during a pavement marking operation and that the fall of Claimants' motorcycle is attributable to the allegedly wet paint. It appears that some of the clothing in question is marked with paint.[2]

Defendant affirms under oath that it has been advised and believes that it may be useful to see and physically inspect the clothing and the dried paint on it for purposes of defending the State. I concur that the clothing is material and relevant and should be preserved. Indeed, it is not disputed that the clothing is subject to disclosure, but the dispute remains as to where it should be maintained.

Claimants wish to retain these items at their attorneys' offices, albeit allowing access there to the Defendant. It appears that at least one set of leather jackets and gloves were, at least until a November 23, 2004 deposition, still in the possession of the Claimants (Exhibit 3). Thereafter, Defendant sought to have a stipulation signed by Claimants' counsel and Defendant's counsel to preserve the clothing. Claimants' counsel declined to sign such a stipulation, albeit allowing that it would be preserved at counsels' offices for viewing. Thereafter, I conducted a conference at Defendant's request and then wrote to the parties on January 12, 2005, anticipating the instant motion, and directing Claimants' counsel to obtain the personal property in question from the Claimants and hold the same until determination of this motion (Exhibit 9 to the moving papers). Defendant observes that if the relief sought were granted, the items in question could be held at the Court of Claims in Buffalo, where Claimants live and their attorneys have offices, thus reducing any hardship to them in terms of access to the property for their inspection and viewing.

Thus, Defendant seeks (1) to have the clothing held by the Court in Buffalo until the trial of this matter which will be held in Rochester; (2) to allow the parties and their experts access to the clothing for inspection and photographing at any time prior to trial, and (3) to permit testing of said clothing only pursuant to further Court order.

Claimants' opposition focuses primarily on the hardship and expense to them if the clothing were to be held by the Court in Rochester. Claimants also seem to argue that it is a hardship to "surrender their personal property to the defendant until the case goes to trial" (Claimants' affidavit, ¶4 and ¶9). I do not read the moving papers as seeking such relief, to wit, the property would not be surrendered to the Defendant, but rather to the Court of Claims in Buffalo to hold such clothing. That relief seemingly obviates nearly every objection or concern raised by Claimants. Clearly they are not being asked to "have to travel to Rochester" to examine their own clients' property (Claimants' affidavit, ¶10).

Claimants also object because they assert that the Defendant cannot offer any evidence as to why these items may be used in its defense, and that if Claimants were unable to produce them at trial a spoliation of evidence charge [sic] could be considered.

Addressing this issue first, Defendant will be permitted to conduct whatever inspection, viewing and court-ordered testing it deems necessary to prepare its defense to the claim, but, at the conclusion of such discovery, it is also directed to affirmatively report to the Court and Claimants whether all the clothing in question will be necessary to be held and utilized at trial. Of course, if it is not, I would direct the release of some or all of the clothing from the Court, returning it to Claimants' attorneys for their retention for trial or to return to their clients.

Claimants' counsel also raises its interest in examining the clothing after it has been examined by Defendant's expert, and that they should not have to ask permission of the Defendant and the Court to examine their own property. The relief sought here at no time would require the "permission" of either party to inspect or photograph the clothing, as such inspection and photographing of the clothing could be accomplished at the Buffalo Court of Claims, subject only to its normal hours of operation. The only permission that would be required would be the Court's relative to testing of the clothing, and that request need simply be made to me by letter from either party on notice to the other party. Depending on the degree of contentiousness, and whether further motion practice is required, I will either issue an order, or utilize a letter to allow such testing.

While Claimants have offered to allow Defendant to obtain the clothing from its offices for examination, expecting it to be returned to Claimants' possession within 30 to 45 days, such offer fails to address possible testing and leaves open the question of further retention of such clothing at Claimants' counsels' offices (see Exhibit 9 - my letter of January 12, 2005).

I was chagrined when I had to permit motion practice and direct Claimants to obtain and hold the clothing in question on January 12, 2005. I am further chagrined that motion practice came to fruition and that Claimants' counsel has seemingly been overly disputatious in this specific matter. Regardless, the motion is granted consistent with the above, and Claimants' counsel shall deliver the said clothing to the Buffalo Court of Claims, 125 Main Street, 8th Floor, Buffalo, New York, within ten days of service of a file-stamped copy of this order.

April 11, 2005
Rochester, New York

Judge of the Court of Claims

  1. [1]The clothing sought, as noted in the most recent notice to produce (Exhibit 1 to the moving papers) is the clothing, gloves and helmets worn by Claimants at the time of the accident.
  2. [2]See Exhibit 3 to the moving papers, purportedly showing photographs of Claimant Beth Dispenza's leather jacket and leather gloves.