New York State Court of Claims

New York State Court of Claims

ARCONE v. THE STATE OF NEW YORK, #2006-030-521, Claim No. 109509, Motion No. M-71113


Synopsis



Case Information

UID:
2006-030-521
Claimant(s):
AMANDA J. ARCONE
Claimant short name:
ARCONE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109509
Motion number(s):
M-71113
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
GOLDSTEIN & METZGER, LLPBY: PAUL J. GOLDSTEIN, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 27, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimant’s motion to


compel discovery:

1,2 Notice of Motion; Affirmation by Paul J. Goldstein, Attorney for Claimant and attached exhibits

  1. Affirmation in Opposition to Motion to Compel Discovery & Inspection by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
4,5 Filed papers: Claim; Answer

Amanda J. Arcone alleges in Claim number 109509 that she was injured in an automobile accident on January 5, 2003 as a result of the New York State Department of Transportation’s negligence in failing to adequately remove snow accumulations that both camouflaged a stop sign, and obscured oncoming traffic. Claimant was traveling westbound on Rossway Road in Pleasant Valley, New York, and was struck by a southbound vehicle driven by Joseph P. Kelleher at Rossway Road’s intersection with the Taconic State Parkway. [See Affirmation by Paul J. Goldstein, Exhibit 1].

One of defendant’s employees, the Highway Maintenance Supervisor of the area, James Younghanse, was deposed on January 4, 2005. [Affirmation by Paul J. Goldstein, ¶4]. Mr. Younghanse indicated that the last plow driver had been William Baker, who is still employed by the Defendant. Counsel for claimant indicates that despite repeated requests to depose Mr. Baker, and indications that he would be produced, he has not been, and now asks that the court specify a date certain for such deposition. [ibid. ¶5].

Notably, at a conference held before the Court on October 25, 2005 at which both attorneys were present, Claimant was directed to proceed by motion with respect to this deposition as well as other matters, when Counsel apparently could not agree on consent disclosure. The expectation had been that there was some substantive reason for delays in disclosure.

Defendant’s initial opposition to the present application is therefore somewhat befuddling, addressing as it does Claimant’s purported failure to seek consent discovery and the lack of necessity for compelling disclosure pursuant to Civil Practice Law and Rules §§3124 and 3126. [Affirmation by Jean Strickland Smith, ¶¶ 4-6]. It is similarly perplexing, and a surprise to the Court - which was under the impression that the examination before trial had already been noticed prior to the October 2005 conference - to now learn that Claimant had not served such notice in the first instance. Civil Practice Law and Rules §3107.

In an analogous vein, the Amended Plaintiff’s (sic) Notice for Discovery and Inspection, Amending a prior Notice dated May 16, 2005, attached to Claimant’s moving papers, has been responded to by Defendant with the production of the requested documents, and that aspect of Claimant’s motion is rendered moot. [Affirmation by Paul J. Goldstein, Exhibit 2]. Presumably, since Claimant has not indicated that such production was insufficient there is no substantive reason to address this aspect of the motion either.

According to the Preliminary Conference Order stipulated to by the same attorneys, and “So Ordered” by the Court, the note of issue in this matter was to have been filed by April 4, 2005. A Stipulation extending that time frame to August 1, 2005 was “So Ordered” on January 25, 2005. There have been no substantive reasons offered for why discovery has not moved along - except when both Counsel have been prodded by the Court - and the Court is not in the business of assuring that officers of the Court maintain the level of communication that such status should assure.

Claimant is directed to serve a notice of deposition upon Defendant within twenty (20) days of the filing date of this decision and order or else waive such deposition. Such notice shall provide that Defendant produce William Baker, a DOT employee, at the offices of Claimant’s counsel for deposition on a date on or before May 1, 2006, unless counsel agree to another date certain or another location to be set forth in writing with a copy to the Court. As counsel are no doubt aware, all papers that are required to be served upon a party must be filed in the Chief Clerk’s office in any event. [See 22 NYCRR §206.5(c)].

Since no mention is made in the motion concerning another DOT employee or former employee, Michael Kovack, whose deposition was also sought at the October 2005 conference, it is presumed that Claimant is no longer interested in obtaining his pretrial deposition, and Claimant has therefore waived such deposition.

The time within which to file a note of issue and certificate of readiness is hereby extended to on or before July 28, 2006. No further extensions shall be granted.

As set forth above, Claimant’s motion [M-71113] is granted in part and denied in part.

March 27, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims