Claimant moved to preclude a defense witness from testifying at trial or, alternatively, compelling the defendant to produce the witness for an examination before trial, contending that defendant's failure to disclose the witness' identity during discovery warranted this relief. The motion was granted to the extent of requiring the defendant to produce the witness for an examination before trial.
|Claimant short name:||BOEHM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Quirk and Bakalor, P.C.
By: Steven A. Lee, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 2, 2010|
|See also (multicaptioned case)|
Claimant moves to preclude the defendant from calling as a witness at trial Lieutenant Kevin Smith, the Deputy of Security at Great Meadow Correctional Facility (Great Meadow), upon the defendant's failure to disclose the identity of this witness prior to the filing of the note of issue. In the alternative, claimant seeks an order compelling the defendant to produce Lieutenant Smith for a deposition at least four weeks prior to trial with all costs and attorneys' fees to be paid by the defendant.
Claimant alleges the defendant was negligent in failing to prevent an assault upon him by another inmate on February 24, 2006 at Great Meadow. Claimant filed a note of issue and certificate of readiness on July 29, 2009 and a pretrial conference was conducted scheduling the trial of this matter for January 10, 2010. By letter dated September 29, 2009, the Court advised the parties that a list of witnesses expected to be called at trial was to be submitted to the Court no later than December 21, 2009. Claimant timely submitted his witness list by letter dated December 21, 2009. Defendant submitted its witness list by letter dated December 23, 2009 indicating, for the first time, its intention to call "the Deputy of Security, Great Meadow Correctional Facility" as a witness at trial. By letter dated January 4, 2010 the defendant identified Lieutenant Kevin Smith as the Deputy of Security at Great Meadow. Claimant now moves for preclusion or, in the alternative, to compel an examination before trial of Lieutenant Smith.
In support of his motion to preclude, claimant's counsel argues that notwithstanding a demand for the names and addresses of witnesses dated August 28, 2008, defendant did not indicate its intention to call Lieutenant Smith as a witness until December 23, 2009, five months after the note of issue was filed. Claimant's counsel points out he traveled 450 miles on two prior occasions to depose witnesses identified by the defendant but was never informed that Lieutenant Smith would be called as a witness at trial. In addition, claimant argues that the trial testimony of Lieutenant Smith regarding security policy and procedures in place at Great Meadow is cumulative and unnecessary given the expected testimony on this subject by Sergeant Eric Eisenschmidt and Correction Officers Richard H. Tougas and Peter McNally.
Sanctions may be appropriate where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126). While the nature and the degree of the sanction is a matter that rests within the court's discretion, sanctions are inappropriate absent a clear showing that the failure to comply with discovery was willful, contumacious or made in bad faith (Gillen v Utica First Ins. Co., 41 AD3d 647 ; Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727 ; cf, O'Brien v Clark Equip. Co., 25 AD3d 958 [prolonged willful failure to provide certain discovery warranted sanctions]). " '[T]he general rule is that a court should only impose a sanction commensurate with the particular disobedience it is designed to punish, and to go no further' " (Rossal-Daub v Walter, 58 AD3d 992, 994 , quoting Matter of Landrigen v Landrigen, 173 AD2d 1011, 1012 ). Here, the Court finds preclusion inappropriate under the circumstances.
In the Court's view claimant's demand did not clearly request witnesses regarding security policies and procedures at Great Meadow. Rather, the demand included requests for witnesses to "the occurrence. . .", "any acts or conditions which have been alleged as causing the occurrence. . .", "any actual notice given to the defendant . . .", "the nature and duration of the conditions which caused the occurrence . . . " and "the names and addresses of any persons having knowledge of the acts, notice or conditions substantiating any affirmative defenses asserted by you" (claimant's Exhibit G). Nor was the defendant in violation of a Court Order at the time the alleged failure to disclose occurred. Under these facts no willful failure to disclose may be inferred. Accordingly, the claimant's motion is granted to the limited extent of requiring the defendant to produce Lieutenant Kevin Smith for an examination before trial within 30 days of the date of filing of this Decision and Order and is otherwise denied. A conference will be scheduled shortly thereafter for the purpose of scheduling a date certain for trial.
June 2, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: