5,6 Filed Papers: Claim, Answer
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
, 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
and provide authorizations for such
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.