New York State Court of Claims

New York State Court of Claims

ARROYO/SPRINGER v. THE STATE OF NEW YORK, #2008-009-009, Claim No. 111361, Motion No. M-73770


Synopsis


Claimants’ motion for sanctions and other relief was granted in part.

Case Information

UID:
2008-009-009
Claimant(s):
TIMOTHY SPRINGER and JACQUELINE SPRINGER, Individually and on behalf of their Infant Children, ADAM SPRINGER, KELLY SPRINGER and RACHEL SPRINGER, and PHYLLIS ARROYO and JOHN ARROYO, Individually and on behalf of their Children, ALEX ARROYO, CHEYENNE ARROYO, and MCKENZIE ARROYO, and all other persons similarly situated
Claimant short name:
ARROYO/SPRINGER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111361
Motion number(s):
M-73770
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
UNDERBERG & KESSLER, LLP
BY: Paul V. Nunes, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Ed J. Thompson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
February 21, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants have brought this motion seeking sanctions and other relief against the State.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney Affidavit, with Exhibits 1,2

Correspondence, with Enclosures, from Ed J. Thompson, Esq., Assistant Attorney General, dated September 26, 2007 3


Attorney’s Affirmation in Opposition, with Exhibits 4

Declaration of Joseph M. Fisher (President, The Notice Company, Inc.), with Exhibits 5

In this claim, previously certified as a class action by a prior Decision and Order[1] of this Court, claimants seek damages allegedly caused by an outbreak of cryptosporidiosis which occurred during the summer of 2005 at the Seneca Lake Spraypark in Geneva, New York.

In order to provide adequate notice to prospective members of the class, claimants sought discovery of certain documents, including log books, registration books and guest books maintained by the Spraypark, to assist in identifying prospective class members. After not receiving responses to their demands, and following a telephone conference with this Court’s Law Clerk, an order was issued on January 23, 2007, directing that responses to outstanding discovery demands, including document production, be provided by April 16, 2007. Responses, as directed by this order, were not provided, and following another telephone conference with this Court’s Law Clerk on May 4, 2007, another order was issued by this Court, dated May 14, 2007, again directing the State to provide specific document disclosure by May 21, 2007. Again, responses to this order were not provided by the State.

On June 18, 2007 the State did provide a response, including the production of certain documents. Claimants immediately objected to the response, specifically noting that the copy of the registration log book provided by the State, consisting of 25 pages, was essentially illegible. Claimants then requested that either a fully legible copy of this registration log book be provided or that the State make the original book available for inspection and/or copy. Despite additional requests made by claimants, the registration/log book, or a legible copy, was not provided by the State. Claimants then were granted permission by this Court to institute this motion seeking sanctions and other relief.

This Court therefore scheduled a hearing on the issue of sanctions for October 22, 2007. After hearing both counsel, proceedings were adjourned, with the Court directing the State to immediately provide the registration/log book which was the center of dispute of this motion, and further directing claimants to provide the Court with information regarding possible publication of a “Summary Notice” regarding the class action litigation in various upstate newspapers.

The Court has since been advised that the registration/log book has been provided to claimants, and information regarding publication of the class action notice has been provided to the Court. A second court appearance was therefore held on January 31, 2008, to address the remaining issues raised by claimants’ motion.

After hearing counsel for the parties, and after a thorough review of the papers submitted in connection with this motion, the Court finds that the defendant has not provided a justifiable or reasonable excuse for its failure to timely produce the original (or a legible) copy of the registration/log book, as previously directed by this Court. The Court also finds that this delay has necessitated an extension of the date previously established for closure of the class, and more importantly, has significantly limited the ability of claimants’ counsel to provide adequate notification to potential class members. As a direct result of the State’s failure to timely provide the registration log book, the Court finds that it is both appropriate and necessary to publish a “Summary Notice” of the class action litigation in several upstate newspapers which the Court finds most likely to provide notice to potential class members who have not, to date, received notification of this class action.

Based on the foregoing, therefore, it is

ORDERED, that the last date for a person to submit a “Request to Join” form to the Claims Administrator is hereby extended from September 7, 2007 to March 31, 2008; and it is further

ORDERED, that a “Summary Notice” (set forth as Exhibit A to Item 5) be published in one weekday edition and one Sunday edition in each of the following newspapers: Albany Times Union, Binghamton Press & Sun-Bulletin, the Buffalo News, the Geneva Finger Lakes Times, the Syracuse Post-Standard, and the Rochester Democrat and Chronicle; with said publication to occur as soon as practically possible; and it is further

ORDERED, that the New York State Office of Parks and Recreation is hereby directed to pay the sum of $1,000.00 to claimants’ attorneys as a partial offset of the publication costs incurred herein; and it is further

ORDERED, that the request for reasonable attorneys’ fees associated with claimants’ attempts to compel production, as well as for the costs and fees involved with the instant motion, is hereby DENIED; and it is further

ORDERED, that a separate order pertaining to further document discovery and the scheduling of depositions will be issued by this Court following consultation with the attorneys for the respective parties herein.


February 21, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. See Decision and Order filed July 12, 2006, Arroyo v State of New York, Claim No. 111362, Motion No. M-71063, Springer v State of New York, Claim No. 111361, Motion No. M-71115, Ct Cl, June 29, 2006, Midey, J., [UID #2006-009-037]). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.