New York State Court of Claims

New York State Court of Claims

CARTWRIGHT v. THE STATE OF NEW YORK, #2006-031-062, Claim No. 107161, Motion Nos. M-71238, M-71545, M-71688


Synopsis


As questions posed in deposition and demands set forth in notice to produce did not seek privileged information and could lead to admissible material, Claimant’s motion for a protective order is denied, and Defendant’s motion to compel discovery is granted. As Claimant does not oppose Defendant’s motion for permission to amend its answer, that motion is granted

Case Information

UID:
2006-031-062
Claimant(s):
JASON CARTWRIGHT
Claimant short name:
CARTWRIGHT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107161
Motion number(s):
M-71238, M-71545, M-71688
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
FARACI & LANGE, LLPBY: MATTHEW F. BELANGER, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 19, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 through 10, were read on motion by Claimant for a protective order and on motions by Defendant seeking permission to amend its answer and an order compelling disclosure from Claimant:
1. Defendant’s Notice of Motion (M-71238), filed February 1, 2006;
2. Affirmation of James L. Gelormini, Esq., dated January 31, 2006, with attached exhibits;
3. Claimant’s Notice of Motion (M-71545), filed April 10, 2006;
  1. Affirmation of Matthew F. Belanger, Esq., dated April 4, 2006, with attached exhibits;
5. Claimant’s Memorandum of Law, dated April 4, 2006;
  1. Defendant’s Notice of Motion (M-71688), filed May 9, 2006;
7. Affirmation of James L. Gelormini, Esq., dated May 5, 2006, with attached exhibits;
8. Defendant’s Memorandum of Law, dated May 5, 2006;
9. Reply Affirmation of Matthew F. Belanger, Esq., dated June 13, 2006, with attached exhibit;
10. Reply Affirmation of James L. Gelormini, Esq., dated June 15, 2006, with attached exhibit. BACKGROUND

In his underlying claim filed on January 8, 2003, Mr. Cartwright alleges that on January 14, 1999, while driving on Interstate 390 in the City of Rochester, he was injured when he lost control of his vehicle while crossing the Genesee Valley Park flyover bridge. Claimant alleges generally that Defendant negligently designed and maintained the area near the bridge. Specifically, Claimant alleges that Defendant permitted snow to accumulate near the guardrail which caused his vehicle to “vault” over the guardrail to the ground 40 to 50 feet below. Claimant suffered very serious injuries in the accident and seeks damages in the amount of $3,000,000.00.

There are currently three motions before the Court. In the first, M-71238, Defendant requests permission to amend its answer. The second and third motions, M-71545 and M-71688, both relate to the same discovery issues. In M-71545, Claimant requests a protective order relating to certain questions posed to Claimant at his deposition and related demands contained in Defendant’s notice to produce. With motion M-71688, Defendant seeks to compel Claimant to respond to the same deposition questions and notice to produce.
MOTION TO AMEND (M-71238)
With motion M-71238, Defendant requests permission to amend its answer to add an affirmative defense relating to the res judicata and collateral estoppel effect of Claimant’s judgment of conviction after trial of driving while ability impaired, aggravated unlicensed operation of a motor vehicle (3rd ) and unlicensed operation of a motor vehicle. Each of these charges stemmed from the accident underlying this claim. Claimant’s counsel has indicated to the Court that it does not oppose Defendant’s application. Accordingly, Defendant’s request to amend its answer is granted.
MOTIONS M-71545 AND M-71688
The discovery dispute underlying both of these motions relates to two basic areas of inquiry. The first is Defendant’s desire to gather information concerning Claimant’s statements concerning alcohol use at the time of the accident. The second relates to Defendant’s attempts to obtain information concerning pending criminal charges and vehicle and traffic violation charges against Claimant subsequent to the accident. At Claimant’s deposition, which occurred on December 22, 2005, Defendant’s counsel asked questions concerning criminal charges pending against Claimant. Claimant’s counsel directed Claimant not to answer these questions. Similarly, Claimant’s counsel directed Claimant not to respond to inquiries as to whether Claimant answered truthfully when he talked to medical personnel after the accident concerning Claimant’s alcohol consumption.

Defendant’s notice to produce, dated January 26, 2006, requests records relating to any criminal charges lodged against or vehicle and traffic violations received by Claimant since January 1, 2003.

In his motion for a protective order, Claimant raises objections to Defendant’s notice to produce and the deposition questions concerning pending criminal charges. In his moving papers, Claimant does not seek a protective order relating to Defendant’s inquiry into Claimant’s statements to medical personnel immediately after the accident. However, Claimant does raise objection to this line of questioning in counsel’s replay affirmation. In its motion to compel, Defendant urges that Claimant be directed to respond to both disputed lines of questioning at the deposition, as well as the notice to produce.

CPLR, Article 31, mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR § 3101[a] ). “The case law, in turn, makes clear that the words ‘material and necessary’ are to be liberally construed ‘to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.’ The test, quite simply, is one of ‘usefulness and reason’" (Mitchell v Stuart, 293 AD2d 905, 906, citations omitted). The question, as articulated by the Court in Zydel v Manges (83 AD2d 987), is whether the demand is “reasonably calculated to lead to relevant evidence.”

With regard to Claimant’s statements to medical care providers shortly after the accident, Defendant correctly points out that such questions are related to both liability and credibility. Accordingly, it was improper for Claimant’s counsel to direct Claimant not to respond to that line of questioning.

Similarly, with regard to Defendant’s questions concerning criminal charges pending against Claimant, I note that criminal charges can lead to criminal convictions. Claimant admits that criminal convictions are discoverable as well as potentially admissible. Further, Defendant correctly points out that criminal charges, whether they result in a conviction or not, can be admissible. Accordingly, although not necessarily admissible, criminal charges against Claimant since the time of the accident are indeed discoverable (Gedrin v Long Island Jewish - Hillside Medical Center, 119 AD2d 799; Watson v State of New York, 53 AD2d 798).

Further, although Claimant’s arguments concerning Defendant’s attempts to garner information concerning traffic violations and whether such information is admissible at trial are well noted, Defendant correctly points out that traffic violations can be admissible or can lead to information that is admissible. As such, I find that information concerning subsequent traffic violations is discoverable (Gedrin v Long Island Jewish - Hillside Medical Center, 119 AD2d 799, supra).

Accordingly I find that Claimant’s refusal at his deposition to answer questions concerning pending criminal charges was improper. Further, with one exception, Defendant’s notice to produce requested documents is appropriate and the materials are discoverable. This exception relates to demand number 1 in Defendant’s notice to produce. In this demand, Defendant requests any records relating to “[c]ontact with any law enforcement officer after January 1, 2003.” I find that this demand is improper because it is overly broad. Such a demand would include matters that are clearly not discoverable, such as letters, emails or even Christmas cards between Claimant and friends or relatives who might happen to be involved in some manner with law enforcement. Claimant, therefore, should not be required to respond to this demand.

Finally, I note that in support of Claimant’s application for a protective order, counsel argues that Claimant has a Fifth Amendment right to refuse to respond to questions or demands that relate to pending criminal charges. I find this argument to be without merit. Defendant has not requested information concerning Claimant’s guilt or innocence, nor facts that could reasonably be construed as tending to demonstrate Claimant’s guilt or innocence. Defendant’s questions and demands merely request information concerning whether or not charges have been lodged. Defendant does not request information that could be construed as incriminating.

Accordingly, it is hereby

ORDERED, that Defendant’s motion for permission to amend its answer (M-71238) is granted; and it is further

ORDERED, that Claimant’s motion for a protective order (M-71545) is denied; and it is further

ORDERED, that Defendant’s motion to compel (M-71688) is granted. Claimant shall submit to further deposition questioning at a time and place mutually agreed upon by counsel. Claimant shall also respond to Defendant’s notice to produce dated January 26, 2006, with the exception of demand number 1, within 30 days of the filed date of this decision and order.

September 19, 2006
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims