Claimant moves for an order quashing four subpoenas dated March 19, 2009,
addressed to four non-party witnesses directing said witnesses to appear for
depositions on April 20, 2009 and April 23, 2009.
This claim, arising out of an alleged slip-and-fall accident at Green Haven
Correctional Facility, was filed on February 15, 2007. Claimant was a visitor
to the facility at the time of the alleged incident. Following joinder of
issue, the parties executed a preliminary conference order providing for the
completion of disclosure and the filing of a note of issue by December 10, 2007.
When such did not occur, the court scheduled a conference and the parties
appeared on March 25, 2008. At that time, the court extended the note of issue
deadline to July 7, 2008, provided there were no motions made prior to that
date. Claimant subsequently made a motion for sanctions based on
defendant’s alleged failure to disclose photographs of the accident scene
and, in an order filed October 16, 2008, the court denied the motion without
prejudice and directed that the note of issue be filed within 30 days.
Claimant complied with the court’s directive and, on October 31, 2008,
filed a note of issue accompanied by a certificate of readiness stating that all
disclosure was complete. By letter dated November 5, 2008, the parties were
notified that trial was scheduled for May 19, 2009. By letter dated March 6,
2009, the parties were notified that a pre-trial conference would be held on
April 28, 2009. On March 19, 2009, defendant prepared the subpoenas at issue,
which were presumably served, accompanied by notices of examination before
trial, shortly thereafter.
In opposition to claimant’s motion to quash the subpoenas, defendant
argues generally that the law of this state provides for full disclosure of all
matters material and necessary to the case, and that depositions of non-party
witnesses are a permissible form of disclosure. Defendant’s arguments
fail to address what is at issue here.
Rule 206.12(d) of the Uniform Rules for the Court of Claims provides that any
party may move to strike a note of issue if disclosure is not in fact complete
or if the case is not ready for trial. No such motion was made.
Subdivision (c) of the rule provides that “[w]here unusual or
unanticipated circumstances develop subsequent to the filing of a note of issue
and certificate of readiness which require additional pretrial proceedings to
prevent substantial prejudice, the court, upon motion supported by affidavit,
may grant permission to conduct such necessary proceedings.” Again, no
such motion was made. Instead, defendant unilaterally served four subpoenas
seeking additional pretrial disclosure, notwithstanding that a note of issue had
been filed five months earlier and that the claim had already been scheduled for
The law is clear that “[h]aving failed to make a motion to strike the
action from the calendar within 20 days from the filing of the note of issue and
statement of readiness, defendant waived the right to conduct further
discovery” (Kagan v Morano, 102 AD2d 844 [2d Dept 1984]).
“It is only where there are present ‘special, unusual or
extraordinary circumstances, spelled out factually,’ that a court has
discretion to depart from this rule” (Huttner v Mayberry, 96 AD2d
527 [2d Dept 1983]).
Defendant was advised of the identity of two of the non-party witnesses in
response to its demand for witnesses on April 4, 2007. The other two witnesses
are inmates under the control of the defendant and it appears that their
identities were known all along as well. The only reason advanced by defendant
for the belated attempt to conduct pretrial disclosure is that the case was
transferred from one assistant attorney general to another in March 2009. Such
excuse is insufficient. “The substitution of new counsel and/or the
inexperience or inadvertence of predecessor counsel alone is not sufficient to
depart from the provisions of these rules” (Ehrhart v County of
Nassau, 106 AD2d 488 [2d Dept 1984]). Thus, even had defendant properly
moved pursuant to Rule 206.12(c), the court would have been without discretion
to allow the belated disclosure.
Accordingly, the motion is granted and the subpoenas and notices of examination
before trial are quashed and vacated. Defense counsel shall immediately notify
the four witnesses that the depositions are cancelled.