Lima v State of New York

[*1] Lima v State of New York 2006 NY Slip Op 51086(U) [12 Misc 3d 1166(A)] Decided on April 14, 2006 Ct Cl Schweitzer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 14, 2006
Ct Cl

Sebastiao Lima, Claimant,

against

State of New York, Defendant.



109963



For Claimant:

Davidson & Cohen, P.C.

By Lesley C. Siskind, Esq.

For Defendant:

Lester, Schwab, Katz & Dwyer, LLP

By Donald E. Burgess, Esq.

Melvin L. Schweitzer, J.

This is defendant's motion to strike the note of issue, direct additional disclosure and extend the time for summary judgment motions. [FN1] The claim, which was filed on October 18, 2004, arises out of a construction site accident and seeks to impose liability on the State pursuant to various provisions of the Labor Law. At a conference held on November 10, 2005, the court directed that claimant file a note of issue by January 31, 2006. Claimant's note of issue was filed on December 9, 2005, and this motion ensued, with defendant alleging that the note of issue was premature because all necessary disclosure has not been completed.

After review of the submitted papers, the court agrees with defendant that the note of issue was filed prematurely and it is stricken. The court makes the following directions with respect to the outstanding disclosure:

1. The date for completion of disclosure and filing of a note of issue is extended to July 17, 2006. Any summary judgment motions shall be made within 30 days of such filing. [*2]

2. Within 30 days of the filing date hereof, claimant will comply with the November 30, 2005, Notice to Produce Authorizations and the January 4, 2006 Notice for Discovery and Inspection, to the extent that claimant has not already so complied.

3. The depositions of the four non-party witnesses identified in the motion papers shall be completed by June 30, 2006.

4. Defendant shall prepare and serve proper subpoenas duces tecum, pursuant to CPLR 3120, and serve them on AIG Claims Service, Liberty Mutual Insurance Company, Modern Continental Construction and Union Local 1298 with proper authorizations. There is no need for these subpoenas to be "so ordered" and they should not be returnable at the court, which does not have the facilities to store disclosure material for parties.

The sole remaining issue is whether defendant is entitled to have claimant examined by a vocational rehabilitation expert, based on claimant's statement to defendant's examining physician that, as the result of the injuries sustained in the subject accident, he would not be able to resume his former employment as a construction laborer. "Under the circumstances of this case, the defendants demonstrated that an examination of the plaintiff by a vocational rehabilitation expert will yield information that is material and necessary to the defense of the action. . . . Furthermore, the plaintiff did not allege that he will be prejudiced or burdened by the examination" (Scotto v M.D.Carlisle Constr. Corp., 18 AD3d 459, 460 [2d Dept 2005], citations omitted). Notwithstanding that claimant herein has not yet indicated that he intends to buttress his claim of disability by utilizing his own vocational expert (cf. Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952), the holding and reasoning of Kavanagh "is not limited to cases in which the plaintiff has retained a vocational rehabilitation specialist" (Smith v Manning, 277 AD2d 1004, 1005 [4th Dept 2000]), but rather was based on "the goal underlying our discovery rules of ensur[ing] that both plaintiff[s] and defendant receive a fair trial' " (Kavanagh v Ogden Allied Maintenance Corp., supra, 92 NY2d 952, 955).

Here, it would seem that any burden accruing to the claimant by submitting to an examination by a vocational rehabilitation expert and claimant does not particularize his claim that such an examination would be unduly burdensome could be addressed by something that has been lacking thus far; i.e., cooperation between counsel. Accordingly, defense counsel shall notify claimant, and the court, of the name and address of the expert within 30 days of the filing date hereof. The court assumes that counsel will cooperate on scheduling a date and will resolve any other such issues that might arise.

New York, New York MELVIN L. SCHWEITZER

April 14, 2006Judge of the Court of Claims Footnotes

Footnote 1:The court read and considered the Notice of Motion, Affirmation and Exhibits, the Affirmation in Opposition and Exhibits and the Reply Affirmation and Exhibits.