This is defendant's motion to strike the note of issue, direct additional
disclosure and extend the time for summary judgment motions.
The claim, which was filed on October 18,
2004, arises out of a construction site accident and seeks to impose liability
on the State pursuant to various provisions of the Labor Law. At a conference
held on November 10, 2005, the court directed that claimant file a note of issue
by January 31, 2006. Claimant's note of issue was filed on December 9, 2005,
and this motion ensued, with defendant alleging that the note of issue was
premature because all necessary disclosure has not been completed.
After review of the submitted papers, the court agrees with defendant that the
note of issue was filed prematurely and it is stricken. The court makes the
following directions with respect to the outstanding disclosure:
1. The date for completion of disclosure and filing of a note of issue is
extended to July 17, 2006. Any summary judgment motions shall be made within 30
days of such filing.
2. Within 30 days of the filing date hereof, claimant will comply with the
November 30, 2005, Notice to Produce Authorizations and the January 4, 2006
Notice for Discovery and Inspection, to the extent that claimant has not already
3. The depositions of the four non-party witnesses identified in the motion
papers shall be completed by June 30, 2006.
4. Defendant shall prepare and serve proper subpoenas duces tecum, pursuant to
CPLR 3120, and serve them on AIG Claims Service, Liberty Mutual Insurance
Company, Modern Continental Construction and Union Local 1298 with proper
authorizations. There is no need for these subpoenas to be "so ordered" and
they should not be returnable at the court, which does not have the facilities
to store disclosure material for parties.
The sole remaining issue is whether defendant is entitled to have claimant
examined by a vocational rehabilitation expert, based on claimant's statement to
defendant's examining physician that, as the result of the injuries sustained in
the subject accident, he would not be able to resume his former employment as a
construction laborer. "Under the circumstances of this case, the defendants
demonstrated that an examination of the plaintiff by a vocational rehabilitation
expert will yield information that is material and necessary to the defense of
the action. . . . Furthermore, the plaintiff did not allege that he will be
prejudiced or burdened by the examination" (Scotto v M.D.Carlisle Constr.
Corp., 18 AD3d 459, 460 [2d Dept 2005], citations omitted). Notwithstanding
that claimant herein has not yet indicated that he intends to buttress his claim
of disability by utilizing his own vocational expert (cf. Kavanagh v Ogden
Allied Maintenance Corp., 92 NY2d 952), the holding and reasoning of
Kavanagh "is not limited to cases in which the plaintiff has retained a
vocational rehabilitation specialist" (Smith v Manning, 277 AD2d 1004,
1005 [4th Dept 2000]), but rather was based on "the goal underlying our
discovery rules of ‘ensur[ing] that both plaintiff[s] and defendant
receive a fair trial' " (Kavanagh v Ogden Allied Maintenance Corp.,
supra, 92 NY2d 952, 955).
Here, it would seem that any burden accruing to the claimant by submitting to
an examination by a vocational rehabilitation expert – and claimant does
not particularize his claim that such an examination would be unduly burdensome
– could be addressed by something that has been lacking thus far; i.e.,
cooperation between counsel. Accordingly, defense counsel shall notify
claimant, and the court, of the name and address of the expert within 30 days of
the filing date hereof. The court assumes that counsel will cooperate on
scheduling a date and will resolve any other such issues that might arise.