New York State Court of Claims

New York State Court of Claims



Claimant’s motion to vacate the Note of Issue is granted and claimant’s motion for an order striking defendants’ answer is granted unless they comply with claimant’s discovery demands within 30 days.

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):
M-71804, M-71840
Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
HARRITON & FURRER, LLPBy: Urs Broderick Furrer, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 18, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimant’s motion for, inter alia, an order striking defendants’ answer and compelling discovery (M-71804):
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Defendants’ Affirmation in Opposition...................................................................2

The following papers numbered 1-2 were read and considered by the Court on claimant’s motion to vacate the Note of Issue (M-71840):
Notice of Motion, Attorney’s Supporting Affirmation..............................................1

Defendants’ Affirmation in Opposition and Exhibits...............................................2

This claim arises out of a motor vehicle accident that occurred on November 25, 1999, on the ramp from westbound Route 17 to westbound I-84 in the Town of Middletown, Orange County. As a result of the accident, claimant was allegedly in a coma for four weeks, suffered long-term post-traumatic amnesia and continues to suffer permanent brain damage. The claim alleges, inter alia, negligence in design, construction and maintenance of the ramps and roadways.
Production of Documents
The following facts are essentially undisputed. On January 25, 2002, claimant’s prior counsel served a Demand for Discovery and Inspection as to seven items (Defendants’ Ex. A [M-71840]). Defendants responded to six of the seven categories sought by the demand and as to the demand for documents, defendants responded “the demand is palpably improper, overbroad and burdensome. The defendants decline to respond or attempt to distill relevant and appropriate items from the demand for disclosure” (Defendants’ Ex B [M-71840]).

In May 2003, claimant’s new counsel contacted defendants to schedule depositions. At the depositions, despite defendants’ response to claimant’s discovery demand for documents, defendants:
“provided claimant’s counsel with opportunity to review, use and obtain copies of all documents relating to the ramp and the happening of claimant’s accident gathered by defendant[s] in its investigation of the claim”

(Defendants’ Affirmation in Opposition, ¶ 7 [M-71840]). The documents provided by defendants included:
“the investigative records of the State Police and Thruway Authority relating to the accident, the plan sheets detailing the initial construction of the ramp, a contract and plans for a 1995 repaving of the ramp, the Department of Transportation’s ‘design file’ for the 1995 contract and printouts of the separate accident histories for the ramp maintained by the Department of Transportation and the Thruway Authority”

(id. at ¶8). Defendants refer to this document production as “the voluntary document production” (id.). Defendants state in their affirmation that:
“[t]he document disclosure given by defendant[s] was not in response to the January 25, 2002 demand - to which response had already been made - or any demand of claimant. It was made, rather, to facilitate the requested depositions and to advance the preparation of the claim for trial”

(id. at ¶9). Defendants further state that as the depositions proceeded:
“additional relevant documents were identified by the witnesses, requested by claimant and provided. Additional witnesses were requested for deposition by claimant’s counsel. They were produced, examined and any relevant documents identified through their testimony were provided”

(id. at ¶10).

Thus, while defendants had explicitly declined to respond to claimant’s discovery demands for documents on the ground that claimant’s demand was “palpably improper, overbroad and burdensome” (Defendants’ Ex. B [M-71840]), thereafter, defendants continued to “voluntarily” provide documents to claimant.
FOIL Request
Defendants’ counsel indicated to claimant’s counsel that while defendants had provided claimant with certain documents such as safety studies, defendants would object to the admissibility of those documents at trial on the basis of privilege. In support of their position, defendants referred claimant’s attorney to a Decision rendered by Hon. Stephen J. Mignano in Claim No. 104411 which held that 23 USC §409 created certain evidentiary protections for states which collect or compile data on highway safety for the purposes of obtaining funding under §152 of the Federal Hazard Elimination Program. The Court of Claims held that, while the privilege may be waived in discovery, the evidentiary protections cannot be waived as to admissibility at trial. Accordingly, to be admissible at trial, claimant must obtain the material from a source other than that which had been compiled by the State for the federal funding (Vega v State of New York, Ct Cl, Oct. 13, 2005, Mignano, J., Claim No. 104411; UID No. 2005-029-526).

On the basis of Judge Mignano’s Decision, claimant’s attorney sought to obtain the documents which had been voluntarily provided by defendants in discovery from an independent source. Therefore, on October 14, 2005 claimant served a FOIL request on the New York State Department of Transportation (DOT). Pursuant to Public Officers Law §89(3), DOT had five business days to respond to such request. Almost three months later, on January 12, 2006, DOT responded that it had no records which claimant would be entitled to review. However, by letter dated March 3, 2006, DOT indicated it was in possession of five boxes and several large piles of materials responsive to claimant’s FOIL request. On March 6, 2006, claimant’s expert contacted DOT to make an appointment to review the records. DOT indicated it was not yet in possession of the records, but it would contact claimant when they were obtained. On March 10, 2006, DOT obtained the records. On March 13 and March 14, 2006, claimant’s expert reviewed the records and found that most of them had never been provided to claimant by defense counsel. Additionally, certain documents appeared to contradict statements in defendants’ Expert Witness Disclosure and others put claimant on notice for the first time that certain work was performed by the New York State Thruway Authority and not DOT. Claimant also discovered Contract D256483 regarding work on the I-84 ramps.
Adjournment of the Trial
Claimant maintained that defendants’ failure to provide these specific documents during the four years since the litigation had commenced, given defendants’ continued “voluntary” disclosure of other documents severely prejudiced claimant in its preparation of its case. Therefore, claimant sought a brief adjournment of the trial scheduled to begin on March 20, 2006 to enable claimant to fully review the newly discovered documents and any other necessary incidentals resulting from such review.

Upon oral argument heard from both sides, this Court found claimant’s request to be reasonable. Given the apparent continued informality of defendants’ willingness to “voluntarily” provide claimant with documents despite defendants’ response to claimant’s discovery demand for documents, the Court granted claimant’s request to adjourn the trial and directed defendants to comply with claimant’s limited discovery demands which resulted from the untimely response to the FOIL request. The Court then directed the parties to return to Court for a status conference within weeks, so that the matter could be rescheduled for trial.

Claimant served defendants with a Notice for Discovery and Inspection dated March 17, 2006 and another dated March 20, 2006 (Defendants’ Ex. D [M-71840]). By letter dated May 3, 2006, claimant informed defendants that claimant had not received any response to the discovery demands which had been served at the Court’s discretion and that:
“[a]s you know, those demands called for the production of certain documentation on or before April 17, 2006 and April 20, 2006, respectively”

(Claimant’s Ex. E [M-71804]). Defendants responded, by letter dated May 8, 2006 and included a copy of their letter dated March 21, 2006 which stated:
“[a]ll rights to disclosure in the claim ended with your filing of the note of issue and statement of readiness. Defendants decline to respond to the demand”
(Claimant’s Ex. F [M-71804]). As was within the Court’s discretion, the Court directed limited further discovery without vacating the Note of Issue (see Grossman v Amalgamated Warbasse Houses, Inc., 21 AD3d 448 [court expressly permitted further discovery and providently exercised its discretion in denying the motion to vacate the Note of Issue.]; Davis v Goodsell, 6 AD3d 382, 385 [court providently exercised its discretion in directing further discovery while the action remained on the trial calendar.]; Sun Plaza Enters. Corp. v Crown Theatres, 307 AD2d 352). Despite this Court’s direction to defendants in open court to comply with claimant’s discovery demands, defendants responded to claimant’s demands as follows:
“[a]ll rights to disclosure in the claim ended with your filing of the note of issue and statement of readiness. Defendants decline to respond to the demand”

(Defendants’ Ex. E [M-71840]).

Current Motions
Due to the non-compliance of defendants’ attorney, claimant’s attorney brought the instant motions to vacate the Note of Issue and to compel that which the Court had already directed defendants to provide. Contrary to the position of defendants’ attorney that “[t]here has been no ‘unreasonable’ refusal to disclose, but merely the assertion of a legitimate objection to claimant’s demands” based upon the filing of the Note of Issue (Defendants’ Affirmation in Opposition [M-71804], ¶ 7), the Court finds that defendants’ attorney willfully and unreasonably disregarded the Court’s order made in open court from the bench (see Moog v City of New York, ___ AD3d ___ [2d Dept, June 13, 2006] [willful and contumacious character can be inferred from repeated failure to comply with court orders and inadequate excuses for the failure to comply]). The very reason for granting the adjournment of the trial and scheduling a subsequent status conference was to monitor the court ordered post-Note of Issue discovery and then to reschedule the trial forthwith. Since defendants’ attorney has impeded this Court’s attempt to expeditiously move this case toward a resolution on the merits, this Court will now GRANT claimant’s motion to strike the Note of Issue based upon the “good cause shown” (22 NYCRR 206.12[d]; see Karakostas v Avis Rent A Car Sys., 306 AD2d 381). If defendants’ attorney continues to act with such disregard for this Court’s authority, he will be subject to sanctions commensurate with his conduct.

Additionally, this Court GRANTS claimant’s motion to strike defendants’ answer unless, within 30 days, defendants comply with claimant’s discovery demands (Esteva v Catsimatidis, 4 AD3d 210) (Defendants’ Ex. D [M-71840]).

July 18, 2006
White Plains, New York

Judge of the Court of Claims