New York State Court of Claims

New York State Court of Claims

BRANCATO v. THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE DEPARTMENT OF TRANSPORTATION, #2008-041-015, Claim No. 112357, Motion No. M-74808


Synopsis


Motion to compel particulars or dismiss claim for failure to provide adequate particulars as to time and place of alleged exposure to toxic particles is granted to the extent of directing claimants to provide a responsive amended bill of particulars within 45 days after date set for completion of depositions.

Case Information

UID:
2008-041-015
Claimant(s):
FAIRUZ BRANCATO, as the Administratrix of the Estate of MICHAEL BRANCATO
Claimant short name:
BRANCATO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE DEPARTMENT OF TRANSPORTATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112357
Motion number(s):
M-74808
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
CANTOR, LUKASIK, DOLCE & PANEPINTO, P.C.By: Sean E. Cooney, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
By: Richard B. Friedfertig, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 10, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendants move to compel claimants to provide an adequate bill of particulars and discovery responses, or, alternatively, for an order dismissing the claim based on claimants’ failure to provide such particulars and responses.

The claim alleges that between 1983 and 2001 claimant Michael Brancato (Brancato) was exposed to “silica dust, asbestos and concrete dust when sand blasting and doing concrete work on various bridge and highway overpasses around the state.” Brancato was diagnosed with lung cancer in February 2006.

The claim was filed on May 19, 2006 and defendants’ answer and demand for a bill of particulars, together with various discovery demands, were filed on June 23, 2006.

Brancato died from lung cancer on July 6, 2006. A party’s “death divests the court of jurisdiction until a duly-appointed personal representative is substituted for the deceased party” Paterno v CYC, LLC, 46 AD3d 788 [2d Dept 2007]); (Matter of Einstoss, 26 NY2d 181, 189 [1970]. Consequently, all proceedings in the action were automatically stayed until an order of substitution was made (Bova v Vinciguerra, 139 AD2d 797, 799 [3d Dept 1988]).

Claimant Fairuz Brancato was thereafter substituted as Administratrix of the Estate of Michael Brancato and a stipulation changing the caption was filed on November 5, 2007.

Claimants provided a bill of particulars and discovery responses after the filing and service of the defendants’ motion.

Defendants, in their motion reply, argue that the bill of particulars fails to set forth the specific dates and locations of the alleged exposure, instead providing a list of the job sites and names of Brancato’s various employers.

Claimants acknowledge in the bill of particulars that the “exact date and time of the exposure is unknown” and suggest in their opposition papers that Brancato’s death hindered preparation of the bill of particulars. Claimants urge that the “specific nature of Mr. Brancato’s work must be discovered through continued investigation and deposition testimony.”

CPLR 3126 provides the Court discretion to strike the pleading of a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.” This ultimate sanction is inappropriate, however, “absent a clear showing that the failure to comply with discovery demands is willful or contumacious” (Cambry v Lincoln Gardens, 50 AD3d 1081 [2d Dept 2008]). Defendants have not made such a showing.

While defendants are entitled to reasonable particulars as to the time and place of the alleged exposure, claimants are similarly entitled to a reasonable period of time to conduct their own investigation, together with the use of depositions and other disclosure devices, in order to obtain those particulars. The parties shall complete depositions on or before January 30, 2009.

For all of the foregoing reasons, defendants’ motion is granted to the extent that claimants are directed to file and serve an amended bill of particulars and discovery responses on or before March 17, 2009.



June 10, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendants’ Notice of Motion, filed April 14, 2008;
  2. Affidavit of Richard B. Friedfertig, sworn April 11, 2008, with annexed exhibits;
  3. Affirmation of Sean E. Cooney, dated April 21, 2008 and annexed exhibits;
  4. Reply Affidavit of Richard B. Friedfertig, sworn May 8, 2008, with annexed exhibits.