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