New York State Court of Claims

New York State Court of Claims

SHIRVANION v. STATE OF NEW YORK, #2008-040-004, Claim No. 109943, Motion No. M-74367


Synopsis


State’s motion to preclude Claimant: (1) from calling witnesses for whom expert witness disclosure was not provided; and (2) from calling his wife as a witness at the liability stage is denied as State never objected to sufficiency of Claimant’s CPLR 3101(d) disclosure and it appears medical providers are Claimant’s treating medical providers. The Court will not preclude Claimant’s wife from testifying on the grounds of relevancy until Court hears her testimony and determines if it is relevant.

Case Information

UID:
2008-040-004
Claimant(s):
SEAN SHIRVANION
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
SHIRVANION
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109943
Motion number(s):
M-74367
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Samuel N. Iroegbu, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Frederick H. McGown, III, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 15, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

For the reasons set forth below, the Court denies Defendant’s motion for a protective order precluding Claimant: (1) from calling witnesses for whom expert disclosure has not been provided and (2) from calling Claimant’s wife as a witness at the liability portion of the trial.


The Claim, which was filed with the Clerk of the Court on October 12, 2004, seeks damages for the alleged assault and battery of Claimant by members of the New York State Police and the New York State Park Police on October 13, 2003.

At the trial preparation conference held on December 20, 2007, Claimant’s counsel indicated, by way of his proposed witness list, that Claimant intended to call certain medical providers to testify at the liability phase of the trial scheduled to commence January 28, 2008. According to Defense counsel, Claimant “has failed to file or serve a response to [D]efendant’s demand for expert disclosure” (McGown Affirmation in Support of Motion, ¶ 4). Counsel further asserts that Claimant’s only response to Defendant’s combined demand for discovery and inspection was a list of doctors’ names and addresses “with no explanation that they would attempt to offer information on the issue of liability” (id.; see Ex. B attached to Motion). Counsel states that no further expert disclosure was received to indicate that the named doctors would attempt to offer expert testimony “that could in any way shed light on whether the activities of the police was an assault or battery” (id., ¶ 5).

As relevant here, CPLR 3101(d) provides:
  1. Experts.
(i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion. However, 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 with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph.

At the trial preparation conference, Claimant indicated he intended to call five witnesses (in addition to himself) at the liability portion of the trial; his wife, three medical doctors, and a nurse practitioner. Two of the doctors, Dr. Lee and Dr. Comely[2], were listed in Claimant’s Response to Defendant’s Combined Demand for Discovery and Inspection (Ex. B attached to State’s Motion).

Trial courts are vested with broad discretion in addressing expert disclosure issues (Mead v Dr. Rajadhyax’ Dental Group, 34 AD3d 1139, 1140 [3d Dept 2006]; Gross v Sandow, 5 AD3d 901, 902 [3d Dept 2004], lv dismissed in part, denied in part 3 NY3d 735 [2004]). In this matter, Claimant provided a response to Defendant’s Combined Demand, which included a Demand for Expert Witness Information. The response is dated December 27, 2005 and was received by the Attorney General’s office on December 29, 2005 (see Ex. B attached to State’s Motion), some two years prior to the trial preparation conference. The response included the names of various medical doctors, medical groups and a psychologist, their business addresses and areas of medical specialty. No objection was made to these responses until the date of the trial preparation conference. The State has failed to establish how it will be prejudiced in preparing for this non-jury trial by having these witnesses testify (see Gross v Sandow, supra).

Defendant relies upon Mankowski v Two Park Company (225 AD2d 673 [2d Dept 1996]) for the proposition that the Court may exercise its discretion to preclude the expert witnesses because of Claimant’s failure to respond to disclosure demands in a timely fashion. Mankowski, however, cites cases where a party either failed to disclose, or unreasonably delayed disclosing, proposed expert witnesses that such party either knew, or should have known, from a much earlier date, it would be calling to testify (see Vigilant Ins. Co. v Barnes, 199 AD2d 257 [2d Dept 1993]; Bauernfeind v Albany Med. Ctr. Hosp., 195 AD2d 819 [3d Dept 1993], lv dismissed in part, denied in part, 82 NY2d 885 [1993]; Robinson v New York City Hous. Auth., 183 AD2d 434 [1st Dept 1992]). This Claim, by contrast, presents an instance, not of failure to comply with a demand for expert disclosure, but an asserted failure to respond sufficiently. The Court concludes that Defendant’s proper course would have been to request an order to compel with a threat of preclusion (Mead v Dr. Rajadhyax’ Dental Group, supra at 1141; see Gross v Sandow, supra at 902; CPLR 3124).

The Court has reviewed Claimant’s Response to Defendant’s Combined Demand for Discovery and Inspection and the exhibits attached thereto. Attached as Exhibit C to that document are copies of Hospital and Medical Records Authorizations. The Court specifically notes authorizations for “Division of Endocrinology[,] Albany Medical College – Dr. Lee and Dr. [Comely]”, “Samaritan Hospital Outpatient Mental Health Clinic” and “Albany Emergency Room – Medical Hospital”[3]. Claimant’s proposed witness list includes: Dr. Lee and Dr. Comely, both in the specialty field of Endocrinology and Metabolism (with Dr. Lee listed as Claimant’s primary care doctor); Dr. Leinung, a doctor at Albany Medical Center Hospital; and Nurse Practitioner of Psychiatry Christa Kellas Bruno of Samaritan Hospital. Thus, since Claimant has provided authorizations allowing Defendant to obtain his medical records from these providers, it appears to the Court that the above-named individuals are Claimant’s treating physicians or medical providers. That conclusion is bolstered by Claimant’s Response to Defendant’s Demand for Verified Bill of Particulars, dated December 27, 2005 (the same date as Claimant’s Response to Defendant’s Combined Demand for Discovery and Inspection attached to the State’s Motion) that was filed with the Clerk of the Court on December 29, 2005 and which the Court considers pursuant to CPLR 2214(c). In that document, Dr. Lee, Dr. Comely, Nurse Practitioner Krista Kellas[4] and the Emergency Room at Albany Medical Center Hospital are identified as healthcare providers that treated and examined Claimant. It is well established “that CPLR 3101(d)(1) applies only to experts retained to give opinion testimony at trial, and not to treating physicians, other medical providers, or other fact witnesses” (Rook v 60 Key Centre, Inc., 239 AD2d 926, 927 [4th Dept 1997]; see Overeem v Neuhoff, 254 AD2d 398, 400 [2d Dept 1998]; Beck v Albany Med. Ctr. Hosp., 191 AD2d 854, 856 [3d Dept 1993]).

Therefore, the motion to preclude Claimant from calling as witnesses at trial the four medical providers listed on the proposed witness list is denied.

The Court next turns to the State’s motion to preclude Claimant from calling his wife as a witness at the liability phase of the trial. Defendant asserts that Mrs. Shirvanion was not present at the scene of the incident and, thus, her testimony at the liability phase of the trial would be irrelevant (McGown Affirmation in Support, ¶ 9). As the Court has not yet heard Mrs. Shirvanion’s testimony, it will not preclude her from testifying on the basis of relevance. Defendant may elect, of course, to move to strike her testimony on the basis of relevance if the State believes that is warranted at the conclusion of her trial testimony.

Finally, the Court notes that Claimant’s counsel personally served his affirmation in opposition upon Defendant on January 10, 2008 and filed it with the Clerk of the Court on the same date. The affirmation was both served and filed one day after the return date of Defendant’s motion. Pursuant to CPLR 2214(b), answering affidavits shall be served at least two days before the motion is noticed to be heard. Claimant’s opposition papers were, therefore, untimely. While the Court has considered Claimant’s opposition papers, little weight has been accorded to them.

Based upon the foregoing, Defendant’s motion for a protective order precluding Claimant: (1) from calling witnesses for whom expert disclosure has not been provided and (2) from calling his wife as a witness is denied in its entirety.


January 15, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s Motion to Preclude:

Papers Numbered


Notice of Motion, Affirmation in Support

and Exhibits Attached 1


Affirmation in Opposition to Defendant’s Motion 2

Filed Papers: Claim, Answer, Response to

Defendant’s Combined Demand

for Discovery and Inspection,

Response to Defendant’s Demand

for Verified Bill of Particulars


[2].The Court notes that Claimant spells Dr. Comely’s name several different ways. The Court adopts this variation for the sake of consistency.
[3].Apparently, the Emergency Room at Albany Medical Center Hospital.
[4].In his proposed witness list, Claimant refers to her as Christa Kellas Bruno.