New York State Court of Claims

New York State Court of Claims

POLANCO v. THE STATE OF NEW YORK, #2007-015-258, Claim No. 112554, Motion No. M-74032


Claim was dismissed as a sanction for the claimant's failure to comply with discovery or otherwise oppose the motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Howard Vargas, EsquireNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Garbarini & Scher, P.C.
Barry Rothman, Esquire
Third-party defendant’s attorney:

Signature date:
December 17, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to compel discovery pursuant to CPLR 3124 or, in the alternative, to dismiss the claim pursuant to CPLR 3126. The claim was filed on July 21, 2006 for injuries allegedly sustained in a trip and fall accident at the Empire State Plaza in Albany, New York on April 29, 2006. A preliminary conference was held on September 28, 2006 establishing September 28, 2007 as the date for the completion of discovery and the filing of the note of issue. An order dated October 26, 2006 was issued with regard to same. On November 30, 2006 defense counsel requested a conference in an attempt to obtain responses to its demands dated August 29, 2006 (see Uniform Rules for the Court of Claims § 206.8 [b]). Defense counsel was advised to send a letter in a good faith attempt to obtain disclosure and to advise the Court if a conference remained necessary. At a conference held on January 3, 2007 counsel for the claimant was advised to provide responses to the defendant's outstanding demands within two weeks. The parties were directed to complete depositions by April 30, 2007. Claimant's responses to the defendant's demands dated August 29, 2006 were finally served on January 17, 2007.

An examination before trial of the claimant was held on April 18, 2007. Subsequent to the deposition the defendant served upon counsel for the claimant additional demands for discovery dated April 23, 2007 and May 15, 2007. By correspondence dated May 2, 2007 defense counsel requested additional authorizations for the release of records and a response to the discovery notices dated April 23, 2007. By letters dated June 7, 2007, July 20, 2007 and August 23, 2007 defense counsel again requested responses to their various discovery demands and advised counsel for the claimant of their intention to seek Court intervention. On September 26, 2007 a second conference was held to address and resolve outstanding discovery issues.

To date claimant has failed to respond to the defendant's discovery notices dated April 23, 2007 and May 15, 2007. The claimant has also failed to file the note of issue and has not opposed the instant motion.

Sanctions may be appropriate where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126). Although dismissal of a pleading for failure to comply with discovery is a drastic remedy, it is warranted where a party's conduct is shown to be willful and contumacious or done in bad faith (Watson v Hall, 43 AD3d 435 [2007]; Cafferty v Thomas, Collison & Place, 282 AD2d 959 [2001]; Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]). Where a blatant disregard of repeated requests for discovery or other conduct "frustrates the disclosure scheme" willfulness and bad faith is established (Zletz v Wetanson, 67 NY2d 711, 713 [1986]; Osterhoudt v Wal-Mart Stores, 273 AD2d 673 [2000]; O'Brien v Clark Equip. Co., 25 AD3d 958 [2006]).

Here the Court finds that the claim should be dismissed in light of (i) the claimant's failure to provide requested discovery despite multiple good faith attempts to resolve the matter (ii) the unexplained failure to complete discovery and file the note of issue and (iii) the lack of opposition to the instant matter.

Based on the foregoing, the defendant's motion to dismiss the claim pursuant to CPLR 3126 is granted.

December 17, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 28, 2007;
  2. Affirmation of Barry Rothman dated September 28, 2007 with exhibits.