Opinion
# 2015-050-071 Claim No. 117649 Motion No. M-87127
11-20-2015
KEITH BRUNJES v. THE STATE OF NEW YORK
Kujawski & Kujawski By: Mark C. Kujawski, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Theresa N. Wilson & John L. Belford, IV Assistant Attorneys General
Synopsis
Claimant moves for an order imposing sanctions upon the defendant based on the defendant's failure to provide recently disclosed document. The defendant's opposed the motion. This Court finds that the appropriate remedy and relief is to vacate the note of issue previously filed and to direct that defendant forthwith produce such witnesses as claimant identifies by letter. The motion is granted to the extent that the note of issue is vacated and discovery sought shall proceed and it is otherwise denied without prejudice.
Case information
| UID: | 2015-050-071 |
| Claimant(s): | KEITH BRUNJES |
| Claimant short name: | BRUNJES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117649 |
| Motion number(s): | M-87127 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Kujawski & Kujawski By: Mark C. Kujawski, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Theresa N. Wilson & John L. Belford, IV Assistant Attorneys General |
| Third-party defendant's attorney: | |
| Signature date: | November 20, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claimant moves for an order imposing sanctions upon the defendant based on the defendant's "long standing, highly prejudicial failure to provide . . . recently disclosed documents and the further discovery that would have followed" (see Notice of Motion dated July 14, 2015). The defendant opposes the motion.
This claim arises from an automobile accident which occurred on January 1, 2009 on the westbound north service road of Sunrise Highway approximately 0.2 miles west of the intersection of the service road and Hospital Road in Suffolk County. The vehicle being driven by claimant is alleged to have slid on the ice on the roadway and struck a tree, resulting in personal injuries to claimant.
Claimant filed a note of issue on May 15, 2014. On September 18, 2014 the action was scheduled for trial on the issue of liability on February 4, 2015. On January 30, 2015, counsel for both parties appeared at a conference before the undersigned; at defendant's request and with the consent of claimant's counsel, the trial was adjourned without date; additionally, claimant's counsel asserted several of the same arguments advanced upon the instant motion although the dispute then identified was not resolved or otherwise determined by the Court.
In view of the fact that claimant has failed to establish that defendant's failure to disclose was wilful or contumacious (see Shapiro v Rose, 195 AD2d 935 [3d Dept 1993]; Read v Dickson, 150 AD2d 543 [2d Dept 1989]; Thompson v Dallas BBQ, 84 AD3d 1221 [2d Dept 2011]) and in view of the essential assertion by claimant that the belated disclosure by defendant of certain witnesses and documents would have led to additional discovery, the Court finds that the appropriate remedy and relief is to vacate the note of issue previously filed and to direct that defendant forthwith produce such witnesses as claimant identifies in a letter to be sent by claimant within 30 days (measured from the filing date of this decision and order). Such letter shall also set forth any and all additional requests for documents or other disclosure as claimant may wish to seek (within the permissible scope of CPLR article 31). The defendant is admonished that any delay or failure to comply with the remaining disclosure sought by claimant, such as those delays which previously have occurred in this case, will not be tolerated and may form the basis - in the context of any future application by claimant - for imposition of sanctions pursuant to CPLR § 3216 and/or 22 NYCRR § 206.20.
This motion is granted solely to the extent that the note of issue herein is vacated and the further discovery sought by claimant shall proceed (as detailed above), and it is otherwise denied without prejudice.
November 20, 2015
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the claimant's motion for discovery sanctions: 1. Notice of Motion, Affirmation in Support of Motion with Exhibits. 2. Defendant's Affirmation in Opposition filed August 17, 2015.