New York State Court of Claims

New York State Court of Claims

E.W. TOMPKINS v. THE STATE OF NEW YORK, #2008-015-085, Claim No. 113478, Motion No. M-75233


Motion to strike note of issue was denied where the first request for the allegedly outstanding discovery was in a letter sent after the due date for filing the note of issue.

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:
Couch Dale P.C.By: Mark W. Couch, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Cornelia Mogor, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 18, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to strike the note of issue pursuant to 22 NYCRR § 206.12 (d) on the ground that a material fact in the certificate of readiness is incorrect. Claimant brings this action for damages arising from the defendant’s alleged breach of the payment terms of a contract for improvements to the State University of New York at Albany. By Order dated June 4, 2007 the parties were directed to complete disclosure and file a note of issue by May 16, 2008. Having failed to initiate paper discovery or conduct a single deposition by the date established in the Order, the parties requested that the date for completion of disclosure and filing the note of issue be extended. By Order dated May 20, 2008 the request was granted and the date for filing the note of issue was extended to June 16, 2008.

On June 12, 2008 Thomas Colloton testified on claimant’s behalf at an examination before trial. With respect to the existence of papers related to a pre-bid estimate, Mr. Colloton testified as follows (defendant’s Exhibit B, p. 45):
Q. Do you have a copy of your bid here which shows how you priced out this piping that we’re talking about that’s shown in Detail 2?

A. You have–

Q. Your actual estimate that you did in the prebid period, do you have that that shows this being priced out?

A. I don’t know if I have that. I just had the computer printouts that I gave you where we compared the costs.

Q. Do you retain those bid estimates that you prepare at the beginning?

A. We only retain them till we buy out the project. Not to say we don’t have it, I’d have to spend some time to look for it.

The note of issue was thereafter served on June 16, 2008 and filed on June 19, 2008. By letter dated June 19, 2008 defense counsel reiterated her oral request, originally made at the deposition of Mr. Colloton, that she be provided a copy of the original bid estimate for the project (defendant’s Exhibit C). Having received no response to this request, defendant served the instant motion to strike the note of issue on July 11, 2008.

A party may move to strike a note of issue within 20 days following service of the note of issue and certificate of readiness and “the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect” (22 NYCRR § 206.12 [d]). First, the Court rejects the claimant’s argument that the instant motion was untimely. The note of issue was served by first class mail on June 16, 2008 and the motion was served on July 11, 2008, within 25 days of the date the note of issue was served (see Id., CPLR 2103 [b] [2]).

Defendant argues that claimant stated incorrectly in the certificate of readiness that all discovery was completed when in fact the defendant had not received the pre-bid estimate requested at Mr. Colloton’s deposition. By letter dated July 17, 2008, counsel for the claimant conveyed the fact that “Mr. Colloton has had the archives searched, and has been able to locate the nine (9) pages enclosed” (claimant’s Exhibit D). In opposition to the instant motion, claimant’s counsel points out that the materials were requested for the first time at Mr. Colloton’s deposition, just four days prior to the due date for completing discovery, and that “[t]he materials found in response to the request have been provided” (claimant’s counsel’s Affidavit In Opposition, ¶ 8). Defendant nonetheless maintains that the documents provided are missing “crucial back-up [pages] concerning the very specific items that are the subject of the narrow issues of this claim - glass and plastic pipe estimates” (Reply Affirmation In Support Of Motion To Strike, ¶ 3).

The Court finds no evidence that a material fact contained in the certificate of readiness is incorrect. Indeed, as of the date the note of issue and certificate of readiness was served, no notice for discovery was outstanding. "While a note of issue will generally be stricken if the case is not ready for trial, the motion to strike can be denied where the parties had sufficient time to complete discovery . . . To vacate the note of issue, discovery requests must be legitimate and pending . . ., not resolved or contrived (Ireland v GEICO Corp., 2 AD3d 917, 917-918 [2003] [citations omitted]; see also Abony v TLC Laser Eye Ctr., Inc., 44 AD3d 553 [2007]; Plonka v Millard Fillmore Emergency Physicians Servs., P.C., 9 AD3d 869 [2004]).

The Court finds that the parties had ample time for the completion of discovery in this matter. As of the date the note of issue was served and filed, no notice for disclosure pursuant to CPLR 3120 was outstanding (cf. Vago v Kaylyakov, 36 AD3d 687[2007]). The first written request for disclosure of the original bid estimate was made by letter dated June 19, 2008 - subsequent to the expiration of the court-ordered date for the completion of discovery and filing of the note of issue. Under these circumstances striking the note of issue would be inappropriate.

Accordingly, defendant’s motion to strike the note of issue is denied.

November 18, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 11, 2008;
  2. Affirmation of Cornelia Mogor dated July 11, 2008 with exhibits;
  3. Affidavit of Mark W. Couch sworn to July 24, 2008 with exhibits;
  4. Reply affirmation of Cornelia Mogor dated August 4, 2008 with exhibit.