New York State Court of Claims

New York State Court of Claims

MOTCH v. STATE OF NEW YORK, #2009-030-504, Claim No. 114067, Motion No. M-75898


Motion by claimant for unified trial denied in part. Bifurcation still warranted despite claimant’s physical and emotional limitations since it offers the best means of clarifying and simplifying issues. Potential bases for liability narrow. In contrast, damages proof would include multiple medical specialties. Nonetheless, to avoid emotional and physical strain of 8 hour car trip necessitated by claimant’s move out of state, claimant may testify on damages as well during liability phase or, alternatively, parties could stipulate to another procedure such as video conferencing.

Case Information

SALLIE M. MOTCH by her attorney-in-fact Jeffrey Farkas, Esq.
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:
Third-party defendant’s attorney:

Signature date:
January 29, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for a unified trial:

1-4 Notice of Motion; Affirmation in Support of Motion for Unified Trial by Donnalynn Darling, attorney for Claimant; Affirmation of Dr. Richard Handelsman dated November 17, 2008; Affidavit of Carol Valentine, sworn to November 21, 2008, and attached exhibits

  1. Affirmation in Opposition to Claimant’s Motion for a Unified Trial by Rachel Zaffrann, Assistant Attorney General
  1. Reply Affirmation by Donnalynn Darling, attorney for claimant
7,8 Filed papers: claim, answer

Sallie M. Motch alleges in her claim that on or about June 5, 2007 at approximately 7:30 a.m. she was in her vehicle exiting her driveway at 996 Haverstraw Road (also known as U.S. Route 202), Suffern, New York onto Route 202, when she was struck by a southbound vehicle. Property maintained by the State of New York abuts the eastern boundary of claimant’s property running parallel to and alongside Haverstraw Road/U.S. Route 202, as part of the Palisades Interstate Park and the Palisades Interstate Park Commission. It appears that the State’s alleged liability arises from its failure to control shrub and other vegetation growth along the roadway curves by claimant’s home where the accident occurred. [Affirmation by Donnalynn Darling, attorney for claimant, ¶6, Exhibit A].[1] Counsel indicates that claimant’s action against the operator of the other vehicle involved in the accident has been resolved. [Ibid. ¶5]. Claimant was deposed on July 10, 2008, and her condition has deteriorated since then according to her attorney. [Ibid. ¶¶7 and 16].

Claimant moves for an order directing that a unified trial of the issues of liability and damages be held, premised upon claimant’s deteriorating physical and medical condition, and to avoid difficulties associated with traveling from her new residence in Virginia to the State of New York on successive occasions. An affirmation by claimant’s treating physician indicates that she has suffered a traumatic brain injury, affecting “every aspect of her physical, mental and emotional functioning” and that traveling is difficult not just because of her physical ailments, but because changes in surroundings add to her confusion. [Affirmation of Richard Errol Handelsman, M.D., dated November 17, 2008 ¶¶ 4,5]. She has no short term memory, so that when she awakens every morning “she forgets that she is visually impaired and does not understand why she has physical limitations.” [Ibid. ¶6]. Airplane travel is foreclosed because of the “pressure differential created by different altitudes would put her at risk for another brain bleed,” and a trip by car from Virginia to White Plains is approximately eight (8) hours. [Ibid. ¶8]. The doctor “strongly suggest[s]” that claimant “be removed from her new home in Virginia on as few occasions as possible. Several trips to New York would prove taxing and deleterious to her mental and physical health.” [Ibid. ¶9].

Carol Valentine, claimant’s friend and her caretaker since the accident of June 5, 2007, indicates that claimant was moved to Virginia on November 15, 2008 to reside near her family, and is maintained by her family and a twenty-four hour aide. [Affidavit by Carol Valentine, sworn to November 21, 2008]. Ms. Valentine adds that “[f]rom day-to-day, Sallie does not remember that she was involved in an automobile accident.” [Ibid. ¶6]. In terms of travel by alternative means, a “train station would not be easy for her to negotiate, even with the help of an aide, due to her mental confusion and limitation in walking.” [Ibid. ¶5].

22 NYCRR §206.19 (a) suggests that trials be bifurcated “where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.” While it is certainly the general practice in the Court of Claims to bifurcate the issues of liability and damages as “encouraged” by the rules, it is not a requirement, but rather a matter of discretion. Similarly, while generally issues of liability and damages in a negligence case are distinct, and the need to include evidence as to the nature of the injuries may be a basis for holding a unified trial, it is not the only basis for requesting a unified trial as argued by defendant, and is not the basis for the request here.

The real concern is the state of claimant’s health, and certainly the opinions of her treating physician and her daily companion versus those of either counsel are more persuasive on the point.

Ignoring the fact that claimant has apparently already been deposed, counsel for claimant asks in a reply affirmation that in the event that the application for a unified trial is denied, that the court direct that claimant come to New York in advance of the trial to give testimony on both liability and damages, and that such testimony be videotaped. Defendant notes that if liability is found, that claimant might participate in any damages trial by the use of video-conferencing technology. In that eventuality, no mention is made of how the defendant would effectuate its right to an independent medical examination or examinations given claimant’s medical conditions. [See Carathers v State of New York, UID # 2008-030-556, Claim No. 109001, Motion No. M-75232 (Scuccimarra, J., September 9, 2008)].

The court is sympathetic to claimant’s physical and emotional limitations, nonetheless, bifurcation of the trial in this case still offers the best means of clarifying and simplifying the issues. While the court would not say that the state’s liability is “speculative” as urged by the defendant, the state’s potential for liability is fairly straightforward and narrow, whereas claimant’s potential damages, as attested to by the treating physician, and as memorialized by Ms. Valentine regarding the change after the accident to her friend of 20 years, would not be simple, and would require presentation of multiple medical specialities and other expert testimony.

Generally, if liability is found, discovery on the issue of damages follows, and a trial of same is held within a reasonable time. Based upon the suggestions of both counsel, the court agrees that the compromise of preserving claimant’s testimony on both liability and damages would be wise, as would the alternative of allowing a further appearance through the use of video-conference technology, now that she has moved out-of-state. Certainly some accommodations can be made in keeping with the court’s obligation to regulate disclosure [see generally Civil Practice Law and Rules §§3103; 3113; 22 NYCRR §206.11] and to direct the order of a trial. [ See Court of Claims Act §9(9); Civil Practice Law and Rules §4011; 22 NYCRR §206.19 (b)].

Based on the foregoing, while claimant’s motion for a unified trial is denied, during the liability trial counsel may elicit separate testimony from claimant on the issue of damages as well, in order to limit the number of times claimant is asked to make what her treating physician avers is an arduous and harmful eight (8) hour car trip, [Court of Claims Act §9(9); Civil Practice Law and Rules §4011; 22 NYCRR §206.19 (b)] unless the parties stipulate to some other procedure.

January 29, 2009
White Plains, New York

Judge of the Court of Claims

[1]. Counsel are reminded of the requirements of 22 NYCRR §206.5(c), requiring that all papers served on a party must be filed in the Office of the Chief Clerk of the Court of Claims. To date, no bill of particulars has been filed as required in the Clerk’s Office, although same may have been served on defendant.