Opinion
# 2019-050-054 Claim No. 130425 Motion No. M-94010
12-23-2019
MARK S. TADEUSHUK v. THE STATE OF NEW YORK
Zelenetsky & Associates, P.C. By: Ava L. Zelenetsky, Esq. Havkins, Rosenfeld, Ritzert & Varriale, LLP By: Bryan Feldman, Esq.
Synopsis
Case information
| UID: | 2019-050-054 |
| Claimant(s): | MARK S. TADEUSHUK |
| Claimant short name: | TADEUSHUK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130425 |
| Motion number(s): | M-94010 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Zelenetsky & Associates, P.C. By: Ava L. Zelenetsky, Esq. |
| Defendant's attorney: | Havkins, Rosenfeld, Ritzert & Varriale, LLP By: Bryan Feldman, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | December 23, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim herein pursuant to CPLR 3126, or in the alternative, for an order pursuant to CPLR 3124 to compel claimant to provide outstanding discovery by a date certain or be precluded from offering evidence as to liability and damages at the time of trial. Claimant opposes the motion.
Defendant first served the various discovery demands at issue on November 17, 2017. Claimant responded on October 8, 2018. Defendant sent a good faith letter requesting that claimant respond to outstanding discovery requests on November 2, 2018 and partial responses were provided on November 11, 2018. On November 21, 2018 defendant sent a good faith letter requesting a supplemental bill of particulars and other discovery authorizations and documents. These demands were discussed at several compliance conferences and were again the subject of correspondence from defendant to claimant on February 14, 2019, March 13, 2019, March 29, 2019, April 30, 2019 and May 8, 2019.
During the pendency of this motion claimant provided outstanding healthcare authorizations and his deposition was scheduled. He argues that defendant's motion should therefore be denied as moot. Defendant contends that claimant must still provide a supplemental bill of particulars as to eighteen paragraphs of its original demand for a verified bill of particulars. Defendant also contends that, despite claimant's contrary position, it is owed a response to a demand for collateral source information, including collateral source authorizations, as well as employment authorizations and a response to its notice for discovery and inspection as to proof of special damages.
A court may strike "pleadings or parts thereof" (CPLR 3126 [3]) as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126). The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the motion court (HSBC Bank USA v Branker, 2019 NY Slip Op 08555 [2d Dept 2019]). "However, the drastic remedy of striking a pleading or even precluding evidence pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious" (Kiernan v Booth Mem. Med. Ctr., 175 AD3d 1398 [2d Dept 2019]).
Here, although claimant's responses have not been prompt, are unverified and are somewhat confusingly spread through various documents and emails, there is insufficient evidence that any failure to comply was either willful or contumacious. That portion of defendant's motion which was to dismiss the claim pursuant to CPLR 3126 is therefore denied.
CPLR 3101 (a) provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action." However, unlimited disclosure is not required and supervision of disclosure is generally left to the trial court's broad discretion (see Greenfield v Bd. of Assessment Review for Town of Babylon, 106 AD3d 908 [2d Dept 2013]). Discovery demands which are overly broad, lack specificity and seek irrelevant documents will not be enforced (see Kamanou-Goune v Swiss Intern. Airlines, 100 AD3d 968 [2d Dept 2012]). "Where discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it" (Greenfield v Bd. of Assessment Review for Town of Babylon, 106 AD3d 908 [2d Dept 2013]).
A bill of particulars is intended to "amplify the pleadings, limit the proof, and prevent surprise at trial. Whatever the pleading pleads, the bill must particularize since the bill is intended to [afford] the adverse party a more detailed picture of the claim" (Flores v New York City Hous. Auth., 151 AD3d 695 [2d Dept 2017]). Further, CPLR 3044 requires verification of a bill of particulars if the pleading to which it refers must be verified. Court of Claims Act § 11 (b) mandates verification of a claim and, accordingly, any bill of particulars designed to amplify a claim in this Court must be verified (see Bury v State of New York, UID No. 2018-032-070 [Ct Cl, Hard, J., Oct. 9, 2018]).
Here, claimant served an unverified bill of particulars, which provided little, if any, detail beyond that in the claim - a response which fails to amply the pleadings. As noted above, subsequent to the filing of this motion claimant provided some discovery responses which defendant concedes render a portion of this motion moot.
Counsel for claimant stated in an email to defendant that claimant is self-employed and will not be pursuing a claim for lost wages at this time yet leaves open the possibility of bringing such a claim later (see defendant's Ex. H). Unless claimant fully withdraws his claim for lost wages, however, his argument that defendant is not entitled to an authorization for employment records fails. On the other hand, claimant has denied receiving Medicare or Medicaid and has provided records regarding the sole medical lien (see claimant's exhibit 1 attached to his sur-reply). Defendant's demand for collateral source information is unclear to both claimant and this Court and claimant cannot provide authorizations unless defendant provides greater clarity as to what it seeks.
Paragraphs 22, 23 and 30 of defendant's demand for a verified bill of particulars have been rendered moot by claimant's responses. Paragraphs 6, 17, 20, 21, 28 and 31 are overbroad and/or improper or are beyond the scope of what is required in a bill of particulars (see CPLR 2043).
Claimant is ordered to provide a verified supplemental bill of particulars which is responsive to paragraphs 16, 18, 19, 24, 25, 26, 27, 29 to the extent applicable, and 32.
Therefore, defendant's motion is denied in part and granted in part as set forth above. Claimant shall serve his verified supplemental bill of particulars and any outstanding health care provider authorizations - including psychological treatment (if any), employment authorizations and any other income-related discovery - within 30 days of the filing of this decision and order.
December 23, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered on defendant's motion: 1. Notice of Motion, Affirmation in Support with Exhibits. 2. Affirmation in Opposition with Exhibits. 3. Sur-Reply Affirmation. 4. Reply Affirmation.