New York State Court of Claims

New York State Court of Claims

LAJOY v. THE STATE OF NEW YORK, #2007-038-547, Claim No. 107783, Motion No. M-72199


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:
ANDERSON & BURAN, PCBy: David C. Buran, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael W. Friedman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 29, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


As alleged in the claim, claimant resides near a site in Plattsburgh, New York where bridges on Interstate 87 were being replaced from October 1998 through November 1999 by the New York State Department of Transportation (NYSDOT). The work at the site was conducted by a contractor, Luck Brothers, Inc. The claim seeks money damages for personal and property injuries allegedly sustained as a result of “significant and unreasonable nighttime noise, vibrations, lighting and other nuisances” (Claim, ¶¶ 16, 17). Following examinations before trial (EBTs) of two of defendant’s employees, claimant served defendant with interrogatories that pose questions mainly about defendant’s compliance with the NYSDOT Environmental Procedures Manual, Chapter 3.1, § 772.19, which outlines procedures for identifying and mitigating highway construction noise (see Friedman Affirmation, Exhibit B). Defendant refused to answer the interrogatories on the ground that claimant was not permitted to conduct EBTs and serve interrogatories in this matter (see CPLR 3130 [1]). Claimant moves to compel defendant to respond to the interrogatories on the ground that she may serve interrogatories on defendant as of right notwithstanding the fact that she conducted depositions of defendant’s employees. Defendant opposes the motion. A party to an action alleging personal injury or property damage that sounds solely in negligence may not serve interrogatories and conduct a deposition of the same party without leave of court (see CPLR 3130 [1]; O’Hara v New York City Transit Auth., 248 AD2d 138, 140 [1st Dept 1998]; Cheng v F. W. Woolworth Co., 65 AD2d 615 [2d Dept 1978]). In actions in which there are causes of action sounding in both negligence and some other theory of liability, a party may use both discovery devices, but the interrogatories may be addressed only to the non-negligence cause of action (see Allen v Minskoff, 38 NY2d 506, 510 [1976]; Rollin v B.F. Goodrich Co., 55 AD2d 985 [3d Dept 1977]; Gellis v G.D. Searle & Co., 40 AD2d 676, 677 [2d Dept 1972]; Ford Motor Co.v O.W. Burke Co., 51 Misc 2d 420, 421-422 [Sup Ct, NY County 1966]; see also Biscombe v S & S Corrugated Paper Machine Co., 67 AD2d 935 [2d Dept 1979]; Siegel, NY Prac. § 361 [4th ed.]; cf. Charlotte Lake River Associates v American Ins. Co., 68 AD2d 151, 154 [4th Dept 1979] [interrogatories allowed in action alleging breach of contract and negligence since heart of the action was breach of contract notwithstanding tangential allegations of negligence]; but see Connors, Practice Commentary, CPLR 3130:3). Thus, the inquiries here are whether the claim sounds solely in negligence and, if not, whether the interrogatories are improperly addressed to the negligence cause of action.

The distinction between negligence and nuisance may be difficult to discern. As distinguished from negligence, nuisance has been described as “a field of tort liability rather than a single type of tortious conduct” (Copart Industries, Inc. v Consolidated Edison Co. of New York, Inc., 41 NY2d 564, 569 [1977] citing Prosser, Torts [4th ed], p 573). Nuisance is the result of conduct, and that conduct may be negligent (see id.) – i.e., the breach of a duty – or it may be intentional (see id. at 570 [the elements of “intentional” nuisance are “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act”]).

In this claim, and in noncompliance with CPLR 3014, claimant’s pleading organizes the causes of action by type of injury sustained (personal injury and property damage), and not by any stated legal theory or theories. The allegations against defendant speak repeatedly of its duties and breaches thereof (see Claim, ¶¶ 14, 15, 18, 19, 20, 23), thus leading to the conclusion that the claim primarily sounds in negligence. However, a substantively identical pleading asserted against the contractor who performed the work was reviewed by the Appellate Division in the context of the contractor-defendant’s motion for summary judgment, and an allegation of nuisance caused by intentional conduct was recognized (see LaJoy v Luck Bros., Inc., 34 AD3d 1015 [3d Dept 2006]). Moreover, defendant, as owner of the property upon which the injury-producing conduct occured, may be liable for the nuisance created by its contractor (see Duane Reade v Reva Holding Corp., 30 AD3d 229 [1st Dept 2006]). Thus, this Court is compelled to conclude that the claim includes allegations of non-negligent conduct, i.e., intentional nuisance.

Claimant is entitled to use interrogatories that are addressed to defendant’s non-negligent conduct, notwithstanding that depositions of defendant’s employees have been conducted (see Rollin v B.F. Goodrich Co., supra; Gellis v G.D. Searle & Co., supra; Ford Motor Co.v O.W. Burke Co., supra). The interrogatories served by claimant and for which she seeks an order compelling answers thereto are, however, addressed almost exclusively to defendant’s compliance with guidelines or other acts related to defendant’s alleged duties, and not its intentional conduct or that of its contractor. It is within the Court’s discretion to refrain from pruning interrogatories (see Village of Mamaroneck v State of New York, 16 AD3d 674, 674-675 [2d Dept 2005]; Rush v Insogna, 119 AD2d 879, 880 [3d Dept 1986]), especially when the majority of them are improper (compare Woods v Alexander, 267 AD2d 1060 [4th Dept 1999] [better practice to prune interrogatories when the majority of them are proper]). Because it is difficult to discern which of claimant’s interrogatories are addressed to nuisance caused by intentional conduct and because it is apparent that most of them are addressed to negligent conduct, the Court will deny claimant’s motion to compel without prejudice to service of further interrogatories addressing intentional nuisance, to the extent that claimant has not served a bill of particulars (see CPLR 3130 [1]). The Court notes that claimant seeks an order compelling answers to interrogatories on the ground that the interrogatories were served as of right. Claimant has not requested permission to serve the interrogatories currently posed (see CPLR 3130 [1]), and upon consideration of claimants submissions, the Court perceives no reason to exercise its discretion to direct such unrequested relief.

Accordingly, it is

ORDERED, that claimant’s motion to compel is DENIED, and it is further

ORDERED, that claimant may serve new interrogatories addressed solely to non-negligent conduct nuisance within twenty (20) days of the date of filing of this decision and order, and it is further

ORDERED, that defendant shall respond to said interrogatories within twenty (20) days (see CPLR 3133 [a]), and it is further

ORDERED, that if the parties cannot resolve defendant’s objections, if any, to the interrogatories without court intervention, they shall contact chambers forthwith to schedule a conference prior to making any motions.

June 29, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion, dated August 23, 2006;

(2) Affirmation of David C. Buran, Esq., dated August 23, 2006, with exhibits A-E;

(3) Claimant’s Memorandum of Law, dated August 23, 2006;

(4) Affirmation in Opposition of Michael W. Friedman, AAG, dated September 13, 2006,

with exhibits A-B.