New York State Court of Claims

New York State Court of Claims

FRECHETTE v. STATE OF NEW YORK, #2009-039-136, Claim No. 114554

(NYSCEF), Motion No. M-76651


Claimant’s motion to compel defendant to produce for depositions two state employees is granted. Claimant successfully argued, over defendant’s objection, that the testimony of the two state employees is relevant on the issue of notice because the employees were present at a meeting with the parents of two children that were involved in a prior, unrelated automobile accident on the same roadway. The parents had agreed to withdraw their claim against the State in exchange for the State’s agreement to attend the meeting. Defendant opposed the request, in part, on the ground that the meeting constituted settlement discussions. The Court held that the meeting between the parents and the two state employees does not constitute compromise negotiations or settlement discussions, but rather was a condition or term of settlement.

Case Information

BLAKE E. FRECHETTE, As Administrator of the Estate of STACEY L. FRECHETTE, deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114554 (NYSCEF)
Motion number(s):
Cross-motion number(s):

James H. Ferreira
Claimant’s attorney:
Conway & Kirby, LLPBy: Elizabeth A. Graziane, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michele M. WallsAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


On February 24, 2007, Stacey Frechette was killed when the vehicle she was driving collided with another vehicle on New York State Route 9, in the Town of Beekmantown, County of Clinton. Blake Frechette, as administrator of her estate, commenced a claim against the State of New York alleging, among other things, that the State was negligent in failing to remove the snowdrift and icy condition from the roadway resulting in the decedent’s wrongful death. Issue was joined and discovery ensued.

Claimant now seeks an order from the Court compelling defendant to produce for depositions two state employees - Gary McVoy, Director of Maintenance, and John Cook, Regional Maintenance Engineer Region 7. Claimant argues that the testimony of McVoy and Cook is relevant to the issue of notice. More specifically, claimant contends that McVoy and Cook were present at a meeting that took place on February 13, 2003 with Dale Anne Wolter and Steve Wolter, parents of two children, one of whom was killed and the other who was injured, in a motor vehicle accident that occurred on February 1, 1997 on the same roadway. Prior to the meeting, the Wolters had commenced three separate claims against the State of New York; one claim was brought by Steve Wolter, in his individual capacity, and two claims were brought by Dale Anne Wolter, as parent and natural guardian of her son, Matthew Wolter, and as administratrix of the estate of her son, Scott Wolter. On December 9, 2002, during an appearance before the Court (Sise, J.), Steve Wolter agreed to withdraw his claim in exchange for the State’s agreement to schedule a meeting between the Wolters, McVoy and Cook. Claimant states that “[t]he purpose of th[e] meeting was to allow Dale Anne and Steve Wolter to advise [McVoy and Cook] of their concerns regarding the roadway” and to discuss future remedial measures available to the State.

Defendant opposes the motion on the grounds that the facts surrounding the Wolter claims are dissimilar to those presently before the Court, and that any discussions that took place between the Wolters, McVoy and Cook during the February 13, 2003 meeting constitute settlement discussions and, therefore, are not subject to disclosure.

It is well settled that “[i]nformation sought to be disclosed should ‘be considered material and necessary’ and ‘[t]he words “material and necessary” are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist in the preparation for trial by sharpening the issues and reducing the delay and prolixity. The test is one of usefulness and reason’ ” (Matter of Saratoga Property Developments, LLC v Assessor of City of Saratoga Springs, 62 AD3d 1107, 1108-1109 [2009], quoting Matter of Food Fair v Board of Assessment Review of Town of Niskayuna, 78 AD2d 335, 337 [1981]). The disclosure of “[e]vidence of any conduct or statement made during compromise negotiations,” however, is generally proscribed by CPLR § 4547 except when “such evidence . . . is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay or proof of an effort to obstruct a criminal investigation or prosecution” (CPLR § 4547; see Stevens v Atwal, 30 AD3d 993, 994 [2006]; American Re-Insurance Co. v United States Fidelity & Guaranty Co., 19 AD3d 103, 104 [2005]).

Here, the Court is not convinced that the meeting between the Wolters, McVoy and Cook constitutes “compromise negotiations” or settlement discussions. In the Wolter matter, defendant’s agreement to require the attendance of McVoy and Cook at a meeting with the Wolters was a condition or term of settlement. The parties did not discuss settlement of the claim at the meeting because a settlement had already taken place on the record on December 9, 2002. However, even if the Court were to conclude that the meeting was in the nature of settlement discussions, claimant seeks to depose McVoy and Cook “for another purpose” (CPLR § 4547) - to gather information that is probative of notice. Moreover, the meeting relates to separate claims and, therefore, the disclosure of confidential or privileged information related to the instant claim is not likely. Nonetheless, defendant may certainly raise with the Court any objections to statements made during the depositions of McVoy or Cook at a later date.

The Court has considered defendant’s argument that the facts of the Wolter claims are dissimilar to the instant dispute and that, therefore, the testimony of McVoy and Cook is not relevant to the issue of whether defendant had notice of a reoccurring dangerous condition, and finds that the argument is not persuasive. A comparison of the bill of particulars from the Wolter matter and the instant claim establishes, for purposes of this motion, that the circumstances surrounding both accidents are sufficiently similar to warrant further inquiry by claimant on the issue of notice.

Thus, in light of the longstanding policy favoring liberal disclosure, and considering that claimant seeks only to depose McVoy and Cook, and that the exact nature of their deposition testimony and its admissibility for purposes of trial have yet to be determined, the Court grants claimant’s request to depose McVoy and Cook at a mutually convenient time as arranged by the parties.

Accordingly, it is ORDERED that M-76651 is granted.

September 9, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion dated May 7, 2009;
  2. Attorney’s Affidavit in Support of Motion by Elizabeth A. Graziane, Esq. sworn to on May 7, 2009 with exhibits;
  3. Affirmation in Opposition to Motion to Compel by Michele M. Walls, AAG dated May 22, 2009 with exhibits; and
  4. Reply Affidavit by Elizabeth A. Graziane, Esq. sworn to on May 28, 2009 with exhibits.