New York State Court of Claims

New York State Court of Claims

JORDAN v. THE STATE OF NEW YORK, #2009-029-029, Claim No. 113331, Motion No. M-76560


Motion to quash subpoenas for non-party depositions granted. After filing of a note of issue, a party may either move to strike the note of issue or move for further disclosure showing unusual or unanticipated circumstances. Since defendant did neither, it was precluded from obtaining additional depositions on the eve of trial.

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:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 22, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 trial.

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.

April 22, 2009
White Plains, New York

Judge of the Court of Claims

Papers considered:

Notice of Motion, Affirmation and Exhibits

Affirmation in Opposition and Exhibits