New York State Court of Claims

New York State Court of Claims

MEYER v. THE STATE OF NEW YORK, #2008-009-008, Claim No. 99381, Motion No. M-71570


Defendant’s motion to renew a prior trial motion to preclude testimony of defendant’s experts was denied.

Case Information

1 1.The caption of the claim has been amended to reflect the fact that claimant Kerilynn J. Meyer is now married, and is known as Kerilynn J. Wasney.
Claimant short name:
Footnote (claimant name) :
The caption of the claim has been amended to reflect the fact that claimant Kerilynn J. Meyer is now married, and is known as Kerilynn J. Wasney.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
BY: James F. Foley, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patrick F. MacRae, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 31, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion to renew a trial motion made by claimants at the damages trial of this claim. Claimants’ motion sought to preclude defendant from offering expert testimony at the damages trial. This motion was granted by the Court on the basis that defendant had failed to timely provide expert disclosure to the claimants as required by a prior order of this Court, and that defendant had failed to provide sufficient reason or justification for its failure to timely provide such expert disclosure.

In addition to oral argument on this motion (which had been requested by the defendant and granted by the Court), the Court has also read and reviewed the following papers in connection with this motion:
Notice of Motion, Affirmation of Winthrop H. Thurlow, Esq., Assistant Attorney General in Charge, Affirmation of Patrick F. MacRae, Esq., Assistant Attorney General 1,2,3

Memorandum of Law 4

Affirmation in Opposition of James F. Foley, Esq., with Exhibits 5


In a Decision dated December 20, 2004, this Court found the State 100% liable for personal injuries suffered by claimant Kerilynn J. Wasney in an automobile accident which occurred in the Town of Savannah, Wayne County, on September 16, 1998. Following this decision on liability, the Court included this claim on a calendar call scheduled for June 14, 2005, for the specific purpose of scheduling a date certain for the damages trial.

As is its custom, a trial date was established only after the Court inquired of counsel as to their availability, and received assurances from counsel that this trial date allowed them sufficient time to complete their respective trial preparations. A trial date of March 13, 2006 was agreed upon and established at this calendar call, which was then confirmed as a date certain by order of the Court.

At the calendar call, the Court also discussed with counsel its time frames for expert disclosure. Specifically, the Court directed that claimants’ expert disclosure be provided no later than 60 days prior to the commencement of trial, and that defendant’s expert disclosure be provided no later than 30 days prior to the commencement of trial. These dates were also set forth in the order establishing a date certain for the damages trial of this claim.

As an aside, the Court notes that the different dates for expert disclosure set forth in this order (in which claimants’ expert disclosure is due prior to defendant’s expert disclosure) had been previously implemented by this Court as an accommodation to, and at the request of, the local office of the Attorney General. The request had been made to the Court (in connection with prior claims handled by this Court) with the explanation that the State, as a defendant, did not want to incur the financial obligation of securing expert witnesses until the State was certain that a claimant intended to present expert testimony. The time lag set forth in this Court’s order allowed the Attorney General, representing the State, to decide whether to retain an expert after having an opportunity to review claimants’ expert disclosure in those cases where disclosure was provided.

As a result of the conference which was held at this calendar call, and as indicated previously, an order was issued by this Court establishing a day certain for the damages trial to commence on March 13, 2006, thereby providing counsel, in this Court’s opinion, with more than adequate time to prepare for trial.

As also previously indicated, this Order contained directions with regard to expert witness disclosure. With a trial date of March 13, 2006, claimants’ expert disclosure was therefore due by January 12, 2006, and defendant’s expert disclosure was due by February 11, 2006. As a result, from the time that this claim was scheduled for the damages trial, claimants had approximately seven months to obtain their experts and provide disclosure, and defendant had approximately eight months to do the same. In this Court’s opinion, these dates provided both parties ample opportunity to retain their expert witnesses, and exchange expert witness disclosure on a timely basis.

Counsel for both parties were provided with a copy of this order, dated June 15, 2005.

On March 1, 2006 the Court was contacted by claimants’ attorney, who requested a conference on March 10, 2006 (the date which had been established for the pre-marking of exhibits) based upon the apparent failure of the State to comply with the order requiring expert disclosure. Due to the nature of this issue, the Court immediately scheduled and held a telephone conference with counsel for the parties on March 3, 2006 (which conference was conducted by the Court’s Law Clerk). At this conference, defense counsel conceded that defendant’s expert reports had not been provided to claimants’ counsel (in fact, a physical examination of the claimant had not yet been conducted, but was scheduled for March 6, 2006), but that such reports would be provided by March 7 or 8, 2006. During this conference, claimants’ counsel raised concerns that his expert would not have sufficient opportunity to review any such reports prior to the commencement of trial. The Court noted that the communication from claimants’ counsel on March 1, 2006 was the Court’s first indication that issues existed with regard to expert witness disclosure, and that there had been apparent noncompliance with the Court’s order directing such disclosure. No prior request had been made by either party to adjust the time frames set forth in that order.

According to the affirmation of claimants’ attorney (see Item 5), the Independent Medical Evaluation (IME) report from defendant’s examining physician (Dr. Kahn) was faxed to his office not on March 7th or 8th, but was received at 4:25 p.m. on March 10, 2006. March 10, 2006 was a Friday, and the trial was scheduled to commence on Monday, March 13, 2006.

Claimants’ counsel also indicates that he had been provided with the curricula vitae (CV) of defendant’s proposed experts on February 21, 2006 (also within 30 days of the scheduled trial date) even though the Attorney General apparently had possession of those CVs prior to the 30-day deadline set forth in the Court’s disclosure order. Defendant’s attorney indicates in his affirmation (see Item 3) that the services of these proposed experts had not been secured until February 16, 2006, and that therefore the disclosure made on February 21, 2006 was therefore reasonable.

As a result of these delays in providing defendant’s expert witness disclosure, at the damages trial on March 14, 2006, claimants’ counsel moved to preclude any such expert testimony by Dr. Kahn and Mr. Stickney, and this trial motion was granted by the Court. The damages trial proceeded to conclusion, and defendant has now moved to renew pursuant to CPLR § 2221, requesting that this Court reverse its trial order.


Defendant’s motion is premised upon CPLR § 3101(d), which governs the disclosure of expert witnesses. Specifically, defendant relies upon language set forth therein which provides that “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance . . .” (CPLR 3101[d][l][i]). Section 3101(d) further provides that a court may make whatever order may be just under the circumstances.

The only proffered explanation from defendant’s attorney as to why expert disclosure was not timely provided is one based on inadvertence. Defendant’s counsel indicates that this particular claim was one of a significant number of cases which had been internally transferred within the Attorney General’s Office after this trial had been scheduled. Additionally, defendant’s counsel indicates that at the same time, he was involved in another trial which prevented him from reviewing this particular claim file until a very short time prior to the deadline for disclosure of expert witness information.

Even accepting this explanation, the Court notes that it was never at any time contacted by defense counsel regarding these difficulties, and defense counsel never requested an extension of the disclosure deadlines or an adjournment of the trial due to his inability to timely provide the required disclosure as required by this Court’s order. As previously indicated, the Court was not made aware of any such problem with respect to expert witness disclosure until it was notified by claimants’ counsel a short time prior to trial. Additionally, claimants’ counsel has indicated that prior to contacting the Court, he had attempted to communicate on numerous occasions with defendant’s counsel in an attempt to obtain the required disclosure, without success (see Exhibit E to Item 5). In other words, it appears to the Court that claimants’ counsel was willing to cooperate with defense counsel as long as the expert witness disclosure was provided in sufficient time to allow claimants’ expert sufficient opportunity to review such disclosure prior to trial, and that claimants’ counsel only requested Court intervention as a last resort. Unfortunately, such disclosure was not provided until (literally) the eve of trial.

While defendant is correct that CPLR 3101(d) does not require a party to retain an expert at any particular time, and does not require preclusion for failure to comply, the Court is provided with broad discretionary authority to “make whatever order may be just” (CPLR § 3101 [d][l][i]). In this particular matter, and after due consideration, the Court finds and concludes that defendant has failed to demonstrate good cause for its failure to serve its expert witness information until the very eve of trial.

First of all, and as previously indicated, defendant’s attorney made no attempt whatsoever to contact the Court in order to request an extension of the previously established deadlines for disclosure, or even, if necessary, to request an adjournment of the trial due to the inability of its experts to complete their examination of claimant and/or their reports.

Second, and as indicated by claimants’ attorney, it appears that the State was in possession of the CV of its two proposed experts prior to the deadline for such expert witness disclosure, yet failed to even provide this information to claimants’ attorney. Specifically, it appears that the CV of Mr. Stickney was received by the Office of the Attorney General on January 5, 2006, and Dr. Kahn’s CV was received on February 9, 2006, but these CVs were not provided to claimants’ attorney until February 21, 2006 (see Exhibits C, D, and E to Item 5).

Third, claimants’ attorney has satisfied the Court that claimants would have been significantly prejudiced in their ability to prepare for trial due to the failure of defendant to provide its expert reports until the eve of trial.

Therefore, the Court remains convinced that its decision to preclude testimony from defendant’s two experts at the damages trial of this claim was not only authorized, but appropriate under CPLR § 3101(d) (Conroe v Barmore-Sellstrom, Inc., 12 AD3d 1121; Lissak v Cerabona, 10 AD3d 308).

Moreover, defendant has ignored the fact that in this particular matter, a Court order had been issued which specifically addressed the issue of expert disclosure and required disclosure of expert witnesses by a certain date prior to trial. Significantly, not only did defendant fail to provide expert witness disclosure a sufficient time prior to the start of trial pursuant to CPLR § 3101(d), defendant also failed to comply with this Court order which specifically required its expert disclosure to be made no later than 30 days prior to trial. Despite the clear language of this Court’s order[2], defendant’s attorney simply ignored the order, failed to comply with its provisions, and made no attempt whatsoever to request from the Court an extension or amendment of that order.

The Court of Appeals has specifically addressed the issue of a party’s failure to comply with Court orders, and has stated: “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.” (Kihl v Pfeffer, 94 NY2d 118, 123). Pursuant to CPLR 3126, a court has broad discretion to enforce its orders, including those directed to disclosure, and this Court finds and concludes that in the instant matter, as set forth above, preclusion was warranted (DuValle v Swan Lake Resort Hotel, LLC, 26 AD3d 616).

Based on the foregoing, therefore, it is

ORDERED, that defendant’s motion to renew (Motion No. M-71570) is hereby DENIED.

March 31, 2008
Syracuse, New York

Judge of the Court of Claims

[2]. Incidentally, all of the dates set forth in the Court’s scheduling order of June 15, 2005, including those setting deadlines for expert witness disclosure, were not arbitrarily established, but were first discussed and agreed upon by counsel for the parties in open court prior to incorporation into the order.