New York State Court of Claims

New York State Court of Claims

GASS v. THE STATE OF NEW YORK, #2006-013-027, Claim No. 108793, Motion No. M-71207


State’s motion for summary judgment is denied as being premature since discovery is not yet completed.

Case Information

1 1.The Court has sua sponte amended the caption to reflect the State of New York as the only properly named Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only properly named Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 20, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On May 17, 2006, the following papers were read on motion by Defendant for summary judgment dismissing the claim pursuant to CPLR 3212:

Notice of Motion and Supporting Affirmation (Galligan Affirmation) with Exhibits Annexed

Affirmation in Opposition (Killerlane Affirmation) with Exhibits Annexed

Reply Affirmation (Galligan Reply)

Filed Papers: Claim; Answer

Upon the foregoing papers, the motion is denied without prejudice.

On January 24, 2003, at approximately 9:45 p.m., Claimant avers that he slipped and fell in an interior hallway located on the second floor in O’Connor Hall on the Delhi Campus at the State University of New York. At the time of this accident, Claimant was a first-year student in his second semester living in Room 212 of O’Connor Hall. Claimant alleges that he slipped in “water and slush and stuff like that on the floor” at the corner of two interior hallways near his room (Defendant’s Exhibit H, p. 50).

Claimant served a notice of intention to file a claim upon the Defendant on April 21, 2003. The claim was filed with the Clerk of the Court on January 20, 2004.[2] The Defendant filed a verified answer on January 28, 2004.

On June 8, 2004, the Court issued a preliminary conference stipulation and order (hereinafter “discovery order”) setting forth a discovery schedule (Claimant’s Exhibit E). The discovery order directed, among other things, that all depositions were to be completed no later than December 31, 2004. This matter was transferred to my calendar by order of the Presiding Judge, Richard E. Sise, filed on April 6, 2006. Previous orders of the Court were rendered by the Hon. Ferris D. Lebous.

The State was initially represented by John E. Dorfman, Esq., with the law firm of Bohl, Della Rocca & Dorfman, P. C. (hereinafter “Bohl Firm”) in Albany, New York. The Bohl Firm continued to represent the State throughout discovery up to and including Claimant’s deposition, which was conducted on August 24, 2004. On October 31, 2005, the law firm of Hiscock & Barclay, LLP (hereinafter “Hiscock Firm”) was substituted as Defendant’s attorney of record in this claim. Claimant has been represented by James J. Killerlane, P.C. since the commencement of this claim.


The State asserts that it is entitled to summary judgment as a matter of law pursuant to CPLR 3212 on the grounds that it did not create the allegedly dangerous condition or have actual or constructive notice thereof. In opposition, Claimant argues the State’s motion for summary judgment is premature because discovery has not yet been completed and, in the alternative, opposes the motion on the merits. The allegations of outstanding discovery warrant closer examination.

It is undisputed that Claimant has not deposed Defendant yet in this matter. Claimant’s counsel alleges that there was a verbal agreement with Defendant’s former counsel, John E. Dorfman from the Bohl Firm, that Defendant would be deposed at some future date after Claimant’s deposition (Killerlane Affirmation, ¶12). Claimant’s deposition was conducted on August 24, 2004, after which counsel confirmed their verbal agreement (Killerlane Affirmation, ¶12). Claimant’s counsel further avers that thereafter several telephone calls were placed to the Bohl Firm regarding the scheduling of defense depositions, but no specific dates were ever selected because the Bohl Firm advised that it was checking into the availability of witnesses (Killerlane Affirmation, ¶13).

In November 2005, after being advised of the change in defense counsel, Claimant’s counsel allege that they contacted the Hiscock Firm to arrange Defendant’s depositions. By all accounts, the Hiscock Firm refused to schedule Defendant’s depositions because it viewed Defendant’s depositions as waived by Claimant due to the expiration of the December 31, 2004 deadline for the completion of depositions contained in the discovery order.[3]

Claimant contends that the State’s motion for summary judgment is premature due to the outstanding depositions of Defendant. Defendant argues that the change in defense counsel did not cause any delay in the scheduling of depositions since the change in attorneys occurred in November 2005, which was almost a year after December 31, 2004, when depositions were to be completed in accordance with the discovery order. Additionally, Defendant argues that the employee affidavits it has submitted in support of its motion are “sufficiently specific to allow the Court to determine liability” (Galligan Reply, ¶7).

I find the State’s argument that Claimant waived his right to depose Defendant to be without merit. Claimant’s counsel avers that there were good-faith discussions with Defendant’s former counsel regarding the scheduling of those depositions which for whatever reason - change of counsel or other - were never held. Notably, Defendant’s new counsel, the Hiscock Firm, does not dispute the allegation that there were good-faith discussions between former defense counsel and Claimant’s counsel regarding the scheduling of Defendant’s depositions. Moreover, I note that those good-faith discussions took place around August 2004, prior to the expiration of the December 31, 2004 deposition deadline in the discovery order. Although Claimant could have and should have contacted the Court to request an extension of the deadline to complete depositions contained in the discovery order, such failure should not deprive Claimant of his opportunity to obtain full and complete disclosure.

Additionally, I disagree with Defendant’s argument that the State’s employee affidavits submitted in support of its motion are “sufficiently specific” to substitute for depositions. An affidavit prepared by defense counsel is hardly a substitute for probative questions asked by opposing counsel during depositions. In any event, there are notable lapses in the State’s employee affidavits. For instance, the State submits the affidavit of Jennifer Brown, the Resident Director for O’Connor Hall at the time of this accident. Ms. Brown avers that she is familiar with the cleaning procedures for the maintenance of O’Connor Hall (Defendant’s Exhibit K, ¶1). However, Ms. Brown’s affidavit offers no specifics regarding any cleaning procedures and/or routines (Deluna-Cole v Tonali, Inc., 303 AD2d 186). Ms. Brown also avers that it is her responsibility to correct conditions and problems “when information comes to the attention of the Resident Director and/or her assistants” after the maintenance staff leaves for the day (Defendant’s Exhibit K, ¶2). However, Ms Brown fails to delineate her responsibilities regarding such after-hour procedures or, for that matter, whether she or anyone else is responsible for actually inspecting the premises after the cleaning staff leaves at 2:00 p.m.

It is well settled that the trial court has discretion to deny a motion for summary judgment if “[f]acts essential to justify opposition may exist but cannot then be stated” (CPLR 3212[f]). As the Appellate Division, Third Department, observed with reference to CPLR 3211(d), a sister statute of CPLR 3212(f), “[a]t the very least, plaintiffs must make a ‘sufficient start’ and show their position ‘not to be frivolous’ [citations omitted]” (Herzog v Town of Thompson, 216 AD2d 801, 803, quoting Peterson v Spartan Indus., 33 NY2d 463, 467). In my view, Claimant has satisfied his burden by demonstrating that the cleaning and maintenance procedures for O’Connor Hall have yet to be fully explored by way of Defendant’s depositions (Campbell v City of New York, 220 AD2d 476, 477).

In view of the foregoing, the State’s motion for summary judgment is denied without prejudice as premature due to outstanding discovery and, as such, I need not reach the parties’ arguments on the merits at this juncture.

Finally, the prior discovery order is hereby amended and I direct that disclosure shall proceed as follows, unless otherwise agreed to between counsel, in writing, and so ordered by the Court:
1. End Date for all Disclosure: The end date for all disclosure is September 15, 2006.

2. Note of Issue: Claimant shall file a note of issue and certificate of readiness on or before October 15, 2006.

3. Motions: Any dispositive motion(s) including a second summary judgment motion by the State, shall be made on or before December 29, 2006.

Accordingly, in light of the foregoing, it is

ORDERED, that the State’s motion for summary judgment is denied without prejudice.

June 20, 2006
Rochester, New York

Judge of the Court of Claims

  1. [2]The date and method of service of the Claim upon the Defendant is not contained anywhere in this record. However, the verified answer does not contain any jurisdictional defenses which, if applicable, would have been waived by their omission (Court of Claims Act §11[c]).
  2. [3]It is noteworthy that the discovery order also contained a deadline for the filing of dispositive motions of December 6, 2005. However, Defendant’s motion for summary judgment was not filed with the Clerk of the Court until January 6, 2006.