New York State Court of Claims

New York State Court of Claims

BONILLA v. THE STATE OF NEW YORK, #2009-030-522, Claim No. 114975, Motion No. M-76242


Synopsis


Defense motion to compel discovery or strike claim denied.

Case Information

UID:
2009-030-522
Claimant(s):
VICTOR BONILLA
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
BONILLA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114975
Motion number(s):
M-76242
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
SCOTT J. ZLOTOLOW, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BRILL & ASSOCIATES, P.C. OF COUNSEL
BY: JAIME M. MERRITT
Third-party defendant’s attorney:

Signature date:
April 13, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on defendant’s motion to compel


disclosure or strike the claim:

1,2 Notice of Motion; Affirmation in Support by Jaime M. Merritt, Brill & Associates, attorneys for defendant and attached exhibits

  1. Affirmation in Opposition by Scott J. Zlotolow, attorney for claimant and attached exhibits
  1. Reply Affirmation by Jaime M. Merritt, and attached exhibits
5,6 Filed Papers: Claim, Answer[2]

Victor Bonilla alleges in his claim that defendant’s agents at the New York State Veteran’s Home at Montrose negligently allowed a dangerous condition to exist causing him to slip, fall and suffer serious injury while housed there. More specifically, he recites that on December 17, 2007 while walking outside he fell due to a snow and/or ice condition.

After receipt of copies of correspondence complaining about the course of discovery, and purported failures to comply with the preliminary conference order entered into on consent and so ordered on July 31, 2008, the parties were directed to serve and file an appropriate motion raising whatever legal argument was impeding progress, in a Daily Report issued by the court on January 5, 2009. This motion has followed.

No argument concerning privilege or any other legal basis for failing to proceed with consent disclosure has been raised. Instead, the court has been advised that counsel for claimant has sought information from his client (copies of correspondence to his client are attached), and most of the items mentioned in defendant’s motion have been furnished.

Claimant is directed to furnish the remaining authorizations for medical and pharmacy records[3], as demanded. If indeed claimant was treated at a hospital as defendant contends, then claimant should serve and file an amended bill of particulars indicating same,[4] and provide authorizations for such records.

Since defendant has not indicated that any other discovery is outstanding, nor has claimant indicated that he is owed discovery, it is unclear why there has been a problem, and why the saber rattling was necessary. Of course, most of the correspondence post-dates the December 2008 letter to the court from defense counsel asserting the lack of progress, as well as the court’s Daily Report of January 2009. Interestingly, counsel were able to consent to adjournment of the return date of the present motion for one (1) month. Perhaps other such agreements of a more substantive nature are forthcoming.

The motion to strike the claim is denied, the motion to compel is granted to the extent that claimant furnish the items requested on or before June 1, 2009, unless the parties stipulate in writing to some other time frame, or else risk preclusion from offering evidence of same at the time of trial. In any event, the note of issue and certificate of readiness is due August 28, 2009, and no extensions have been sought or authorized herein. Should any future failure to abide by consent disclosure arise, the court would consider imposition of appropriate sanctions. See 22 NYCRR §130-1.1.

April 13, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. Although the parties were reminded of the requirement in the Daily Report allowing the present motion, no demand for a bill of particulars or response has been filed in the Office of the Chief Cerk. See 22 NYCRR §206.5. Additionally, it is a “claim” that is before the court, not a “complaint”; and Mr. Bonilla is a “claimant”, not a “plaintiff”. See generally Court of Claims Act §1 et seq.
[3]. It is noted that counsel for claimant indicates that his client avows that “he has not used any pharmacies.”
[4]. Again, the demand for the bill and the bill itself have yet to be filed as required.