New York State Court of Claims

New York State Court of Claims

KING v. THE STATE OF NEW YORK, #2007-030-506, Claim No. 107477, Motion Nos. M-72404, CM-72476


Synopsis


Claimant’s Motion for an Order compelling further depositions of DOT employees, including some people already deposed granted in part; Defendant’s Motion to compel production of discovery documents obtained in parallel litigation against City of New York and for Protective order granted in part. Although Defendant State of New York or its agencies initially may determine which of its officers with knowledge of the facts may appear for pretrial examination, when established that the knowledge of the proffered official is insufficient to produce testimonial and documentary evidence ‘material and necessary’ to the prosecution of the action Court may grant a motion for the production of additional witnesses. Party seeking to depose additional witnesses must make a detailed showing of the necessity for taking such depositions, including showing that witnesses produced had insufficient knowledge or were otherwise inadequate, or that further discovery warranted because substantial likelihood that additional persons sought for deposition possess material and necessary information. Successive depositions should not be cumulative. Infant claimant a passenger in the rear seat of a vehicle traveling on Van Wyck Expressway at its intersection with the westbound Grand Central Parkway, striking concrete barrier and railing due to dangerous, recurring, icing conditions prevalent on the roadway, because of improper design and maintenance of the drainage system and failure to warn of such dangerous, recurring conditions

Case Information

UID:
2007-030-506
Claimant(s):
FLORA KING, legal guardian and grandmother of Infant claimant, GWENDOLYN WALLER
Claimant short name:
KING
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107477
Motion number(s):
M-72404
Cross-motion number(s):
CM-72476
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
BRODY, BENARD & BRANCH, LLPBY: MATTHEW F. RICE, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: GAIL P. PIERCE SIPONEN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
January 29, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Claimant’s motion and on Defendant’s


cross-motion:

1,2 Notice of Motion, Affirmation in Support by Matthew F. Rice, Esq., Attorney for Claimant and attached exhibits

3,4 Notice of Cross-Motion, Affirmation in Support by Gail P. Pierce Siponen, Assistant Attorney General, and attached exhibits

5,6 Filed Papers: Amended Claim, Answer to Amended Claim

In this claim Flora King, on behalf of Gwendolyn Waller, an infant, alleges that on January 12, 2003 at approximately 1:50 a.m. Gwendolyn was a passenger in the rear seat of a vehicle traveling in the left lane of the northbound Van Wyck Expressway at its intersection with the westbound Grand Central Parkway, when the vehicle stuck a concrete barrier and railings due to dangerous, recurring, icing conditions prevalent on the roadway, because of improper design and maintenance of the drainage system and failure to warn of such dangerous, recurring conditions. [Claim No. 107477, ¶¶ 3, 4]. The infant Claimant sustained serious and permanent personal injuries.

Claimant’s motion seeks an Order dismissing the Answer for failure to disclose pursuant to Civil Practice Law and Rules §3126; or an Order precluding Defendant from offering evidence on the issue of liability for failure to disclose pursuant to Civil Practice Law and Rules §3024; or an Order compelling further depositions in various categories, including some people who have already been deposed, pursuant to Civil Practice Law and Rules §3101.

Defendant’s cross-motion seeks an Order compelling Claimant to furnish certain discovery documents obtained in parallel litigation Claimant instituted against the City of New York; as well as a protective order as to Claimant’s discovery demands.
DISCUSSION AND CONCLUSION
Civil Practice Law and Rules §3101(a) requires generally that there shall be “. . . full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . .” In the context of depositions, it is well settled that a Defendant municipality or other entity such as a corporation or the State of New York or its agencies initially “. . . has the right to determine which of its officers with knowledge of the facts may appear for pretrial examination (D’Ulisse v Town of Oyster Bay, 81 AD2d 825 [2d Dept 1981]; Consolidated Petroleum Term. v Incorporated Vil. of Port Jefferson, 75 AD2d 611 [2d Dept 1980]). Only when the plaintiff establishes that the knowledge of the proffered official is insufficient to produce testimonial and documentary evidence ‘material and necessary’ to the prosecution of the action . . . may the court grant a motion for the production of additional witnesses (supra). Further, a party seeking to depose additional witnesses must make a detailed showing of the necessity for taking such depositions (Ayala v City of New York, 169 AD2d 530 [1st Dept 1991]; cf., Simon v Advance Equip. Co., 126 AD2d 632 [2d Dept 1987]).” Colicchio v City of New York, 181 AD2d 528, 529 (1st Dept 1992); see also Sangiacomo v State of New York, UID #2004-032-084, Claim No. 107450, Motion Nos. M-68453, CM-68720, CM-68809 (Hard, J., September 29, 2004). The Claimant must show that the witnesses already deposed “. . . had insufficient knowledge or were otherwise inadequate, or that further discovery [is] warranted by reason of a substantial likelihood that additional persons sought for deposition possess . . . information material and necessary . . . (citations omitted).” Hayden v City of New York, 26 AD3d 262 (1st Dept 2006); see also Radon Construction Corp. v Alcon Construction Corp., 277 AD2d 368 (2d Dept 2000)[1]; Zollner v City of New York, 204 AD2d 626, 627 (2d Dept 1994)[2]; Simon v Advance Equipment Co. Inc., 126 AD2d 632 (2d Dept 1987)[3]. Successive depositions should not be cumulative.

Claimant seeks to depose certain witnesses previously noticed for examination before trial in or about June 2006. [See Affirmation in Support by Matthew F. Rice, Esq., Attorney for Claimant, Exhibit A]. They are: (1) Alec Gellman, New York State Traffic & Safety Engineer, Region 11; (2) Sonia Rivera, New York State Department of Transportation Director of Operations, Region 11 (3) Osama Khalil, New York State Freedom of Information Law/Construction Representative, Region 11; (4) Sajjad Ahmed, New York State Maintenance Engineer, Region 11; and (5) a further examination of Kartik Adhvarhyu, New York State Regional Traffic Safety Engineer, Region 11.

At the time this motion was made, it appears that two (2) depositions had been taken to date of Defendant through its employees. Kartik Adhvarhyu, employed by the New York State Department of Transportation [NYSDOT] since 1987, and a Civil Engineer in the Highway Maintenance Group and Resident Engineer for Queens County in January 2003 testified at length [see Affirmation in Support of Motion by Matthew F. Rice, Esq., Exhibit N], as did Joseph Condon, a NYSDOT employee since 1973, who was a civil engineer with the maintenance division for at least five years prior to January 2003. [See Affirmation in Support of Motion by Matthew F. Rice, Esq., Exhibit O]. As one of three resident engineers for Region 11 encompassing the five boroughs of New York City, Mr. Adhvarhyu apparently reported to Mr. Condon, the Assistant Regional Engineer, and was specifically assigned to the area of this accident. [See id. p. 49-50].
Sajjad Ahmed
As an initial matter since the Assistant Attorney General indicates that the State does not oppose the deposition of Sajjad Ahmed “. . . [g]iven Mr. Ahmed’s position in design within NYSDOT . . .”, the State is hereby directed to produce Mr. Ahmed for examination before trial. [Affirmation in Support of Cross-Motion by Gail P. Pierce Siponen, Assistant Attorney General, ¶50]. As to whether inquiries should be “. . . limited to the memorandum and work orders he prepared, and the work done between December 2001 and April 2003” as suggested by the Assistant Attorney General, because, she urges, the other two witnesses produced already spoke of the interplay between the City of New York and the State of New York in the Arterial Highway system, the Court does not find that this is a compelling reason to limit Mr. Ahmed’s examination in this fashion concerning these issues, though Counsel are free to make whatever objections he or she deem appropriate in the normal course at the time of the examination. It would appear that as an employee offered from the design department, Mr. Ahmed might be more useful in furnishing information concerning the design elements associated with the design and construction of the applicable roadway sections, areas that Mr. Adhvarhyu - who has already been deposed at some length - as well as Mr. Condon, indicated were design department areas of expertise or responsibility - rather than addressing control or contractual issues[4], but the Court will not limit his examination at this point. [See e.g. Affirmation in Support of Motion by Matthew F. Rice, Esq., Exhibit N, p. 56-57].
Remaining Applications- Documents; Alec Gellman, Sonia Rivera, Osama Khalil
While a voluminous file has been created in the Office of the Chief Clerk, it is conspicuously one-sided. Court rules require that any documents that are required to be served upon a party must be filed with the Clerk. See 22 NYCRR §206.5(c) Despite this rule, the Clerk’s file is filled only with the State’s Demands and Responses.

As an initial matter, Claimant is directed to file in the Office of the Chief Clerk of the Court of Claims all papers served on the State as required, on or before March 12, 2007.

The Court is not unmindful of the difficulty of pinning down what were the respective areas of responsibility as between the City and State of New York, and further how - within the remarkably stratified NYSDOT - the State’s responsibility is meted out. There are contractual obligations, and there are those created by statute [see Highway Law §349], and the Claimant will have to parse out what her theory is with regard to these, and whether and to what degree the State of New York bears responsibility.

Nonetheless, in the simplest of terms, a claim such as this one boils down to ‘who knew what, and for how long, and whether given such knowledge they acted reasonably.’ While the Court appreciates the open file approach taken by the Assistant Attorney General - as should the Claimant’s attorney - the Court has reviewed the depositions of the two State employees appended to the Claimant’s moving papers, as well as the documents produced pursuant to whatever discovery demands were made by Claimant and agrees that depositions of other individuals from the various departments - particularly in design and maintenance for Region 11 in keeping with the structure of the agency - would likely produce material and necessary information. Both Mr. Adhvarhyu and Mr. Condon had significant ‘holes’ in their testimony, premised upon their inability to recall some events or procedures. Thus the Court is satisfied that the employees already deposed had insufficient knowledge, and while there is some danger of eliciting cumulative information, perhaps others suggested in what testimony has been taken and in what documents have been produced would have a better recollection.

For example, suggesting the deposition of Mr. Gellman premised upon his regular attendance at State Arterial Highway Maintenance Task Force meetings, apparently as a representative of the NYSDOT Traffic Engineering and Safety division, and participation in what Claimant theorizes was a significant onsite visit, when the other State witnesses deposed so far have defined signage and other issues as not in their area is perfectly reasonable. [See Affirmation in Support by Matthew F. Rice, Esq., Exhibit J].

The suggested deposition of Sonia Rivera, the Director of Operations for Region 11, however, based upon the present application, does not seem similarly supported. With respect to Ms. Rivera, the offered deposition of Mr. Ahmed would appear more likely to elicit material and necessary information as he was the recipient of a memorandum directing some work at or near the subject location before the date of this accident. [See Affirmation in Support by Matthew F. Rice, Esq., Exhibit L].

Similarly, seeking the deposition of Osama Khalil, whose only role is as the FOIL officer for NYSDOT records, is not supported. To characterize Mr. Khalil as having a conflict of interest because of his job function as the Freedom of Information Law Officer, placed in the NYSDOT Construction Department is not persuasive. As explained by the Assistant Attorney General - an officer of the Court - while Mr. Khalil keeps a litigation file prepared for the Office of the Attorney General, it is attorney work product, and is not discoverable. [Affirmation by Gail P. Pierce Siponen, Assistant Attorney General, ¶18]. Counsel are reminded that documents generated in the regular course are not, however, work product, and such documents are not ‘immunized’ by their location.

No further deposition of Mr. Adhvarhyu is warranted. While Claimant’s counsel on the motion now indicates that Claimant’s attorneys were “forced” to depose Mr. Adhvarhyu before completion of document discovery, this sounds too much like an after-the-fact dissatisfaction with the answers given by the witness who, as mentioned above, had some lack of recall. This concern is more properly addressed should he testify during the trial, not a basis for further pre-trial examination.

Finally, Defendant asks that the Claimant furnish copies, at the State’s expense, of the documents obtained in discovery from the City of New York in the Supreme Court proceeding. Claimant’s Counsel on the Motion - an officer of the Court - indicates such records have already been furnished, and annexes a copy of the transmittal letter. [Affirmation in Reply by Matthew F. Rice, Esq., Exhibit A].

Accordingly, and after careful consideration of all of the foregoing, the motions are each granted in part and denied in part, and it is hereby

ORDERED, that Claimant produce the documents obtained from the City of New York, as well as copies of any depositions taken during the course of the litigation against the City of New York concerning this accident, at the State’s expense, if it has not done so completely already, on or before March 12, 2007; and it is further

ORDERED, that the State produce Sajjid Ahmed for examination before trial on at least ten (10) days notice, at a time and place to be set forth in the notice, or at such time and place as the parties may agree, and it is further

ORDERED, that the State produce Alec Gellman for examination before trial on at least ten (10) days notice, at a time and place to be set forth in the notice, or at such time and place as the parties may agree, and it is further

ORDERED, that the foregoing examination before trial of Mr. Ahmed and Mr. Gellman, be conducted before March 30, 2007 in any event, and it is further

ORDERED, that both Counsel shall provide the Court within thirty (30) days of the filing date of this Decision and Order with a written statement of all outstanding discovery with a copy served on opposing counsel. If further depositions are sought, which does not seem likely, the individuals shall be listed and prioritized, and Counsel shall include a statement of the reasons why such person’s testimony will be material and necessary to the Claim against the State of New York and how such testimony would not be cumulative.

A Note of Issue is scheduled to be filed by April 30, 2007. No further extensions shall be granted except at a calendar call to be held at the Court’s convenience should Counsel seek such extension.


January 29, 2007
White Plains, New York

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




[1]. “The plaintiff established that the witnesses produced by the Town were insufficient to provide testimonial and documentary evidence that is ‘material and necessary’ to the prosecution of its action, as provided in CPLR 3101(a). Moreover, the plaintiff established a substantial likelihood that the Town official it seeks to depose has knowledge of material issues . . . (citation omitted).”
[2]. Witness already deposed indicated that two other employees had been witnesses to accident and did not see the accident himself. Necessity of additional depositions of at least those two employees established because “(1) . . . the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case . . . (citations omitted).”
[3]. “ . . . [W]itness produced by the respondent had inadequate knowledge as to matters bearing on material issues in the case, which knowledge would assist the plaintiffs in preparation for trial. The plaintiffs have also established a substantial likelihood that other employees of the respondent do have such knowledge.”
[4]. The Court notes that Mr. Condon, in his deposition, also spoke of the respective responsibilities of the divisions or departments within the NYSDOT, saying, when asked, that the primary function of maintenance was to “. . . oversee the maintenance of the highways, . . . oversee the agreements that we have with the City to maintain our roadways . . .” [Affirmation in Support of Motion by Matthew F. Rice, Esq., Exhibit O, p. 17].