Opinion
# 2021-028-502 Claim No. 124072 Motion No. M-95848
02-04-2021
KENNETH BAKER, Individually and as Parent and Natural Guardian of Bo Baker, Deceased v. THE STATE OF NEW YORK
CASTLE LAW FIRM BY: Michael A. Castle, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Christopher J. Kalil, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2021-028-502 |
| Claimant(s): | KENNETH BAKER, Individually and as Parent and Natural Guardian of Bo Baker, Deceased |
| Claimant short name: | Baker |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124072 |
| Motion number(s): | M-95848 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | CASTLE LAW FIRM BY: Michael A. Castle, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Christopher J. Kalil, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 4, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Defendant's motion to dismiss pursuant to CPLR 3224 to compel disclosure:
1. Notice of Motion filed August 31, 2020;
2. Affidavit of Michael A. Castle dated August 31, 2020 with Exhibits A-D annexed;
3. Affirmation of Christopher J. Kalil filed September 24, 2020 with Exhibits A-D annexed.
Filed papers: Claim, Amended Answer
Claimant has moved for an order striking the affirmative defense of qualified immunity or, in the alternative, for an order pursuant to CPLR 3124 compelling defendant to comply with a Demand for Discovery dated July 20, 2020.
The claim alleges causes of action for conscious pain and suffering and wrongful death arising from an incident in which the vehicle claimant's decedent was driving left a State highway and landed, partially submerged, in a pond adjacent to the roadway. After the trial of this matter was scheduled to commence in January 2019, the court granted an adjournment at claimant's request in order to allow document discovery from non-parties and the depositions of non-party witnesses. The order adjourning the trial explicitly prohibited claimant from making further disclosure demands upon defendant. Thereafter, in a companion action in Supreme Court, Montgomery County, plaintiff, claimant here, served subpoenas duces tecum directing the production of safety audits and traffic folders, as well as studies and reports, to be produced at the non-party depositions of three New York State Department of Transportation (DOT) engineers. Plaintiff also made a request to DOT, under the Freedom of Information Law, for the same materials sought through the subpoenas. In response DOT provided approximately 2,250 pages of responsive materials.
A second trial date in June 2020 was also adjourned due to the unavailability of claimant's expert witness. Thereafter, the court granted a motion by defendant to amend the answer to assert the affirmative defense of qualified immunity. In light of the amendment, the court permitted claimant to seek additional disclosure limited to the newly asserted defense. On July 2, 2020 claimant served a demand, which is the subject of this motion, listing thirty-five categories of documents.
CPLR 3126 authorizes the court to strike pleadings, or parts thereof, where a party "wil[l]fully fails to disclose information which the court finds ought to have been disclosed." The exercise of a court's power to strike a pleading for noncompliance with disclosure demands is a drastic remedy reserved for instances where a party's failure to comply is willful, contumacious, or in bad faith (Mesiti v Weiss, 178 AD3d 1332 [3d Dept 2019]). Here, in response to the July 2020 demand, defendant sent a letter, dated July 27, 2020, to claimant indicating that it was endeavoring to respond to the non-objectionable portions of the demand and setting forth objections to all or parts of 29 of the 35 demands. On August 4, 2020 claimant sent a letter to defendant requesting a response to the demands and now maintains that to date no further responses have been received from the defendant. Although at the time the motion was made defendant had not provided any further material in 'response' to the demand, defendant sent a letter, dated August 10, 2020, in response. In this letter defendant clarified that the previous letter was not meant as a response to the demands, but, rather, was intended to preserve objections to those demands. Defendant also indicated in the letter that responses to the non-objectionable demands were being compiled but that some of the material was more than 50 years old, was spread across different departments and residencies and that compilation may be slowed by pandemic related work schedules. On August 31, 2020 claimant served this motion.
Defendant's responses to both the demand and the good-faith letter stand strongly against claimant's argument that the qualified immunity defense should be stricken because defendant has acted in bad faith and willfully failed to provide disclosure.
The question of which, if any, non-objectionable items in the July 20, 2020 demand defendant should be compelled to provide a response to must be decided in the context of the prior decision and order limiting disclosure to those matters relevant to the qualified immunity defense. In allowing an amendment so as to include that defense, the court noted that the claim was based on allegations of negligence by the State in designing and maintaining its roads. The court explained that:
"Highway planning, design and maintenance are proprietary functions arising from the State or municipality's duty to keep its roads in a reasonably safe condition (see Turturro v City of New York, 28 NY3d 469, 479 [2016]). In such cases, the State is afforded qualified immunity 'where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury' (Weiss v Fote, 7 NY2d 579, 588 [1960], rearg denied 8 NY2d 934 [1960]). Where a traffic study or plan has been performed, liability may only be imposed where the study is inadequate or there was no reasonable basis for the traffic plan adopted. An unjustifiable delay in implementing a traffic plan will also support a finding of liability (Friedman v State of New York, 67 NY2d 271, 284-286 [1986])." (Baker v State of New York, Court of Claims, June 5, 2020, Claim No. 124072, M-95369, Collins, J.)
The objections raised to many of the demands are based on the argument that the material sought relates to post-accident activity and therefore, is irrelevant to the of qualified immunity which relies exclusively on pre-accident studies and planning. Defendant also raised objections based on the material having been previously disclosed or produced in response to subpoena, or the demand being overbroad and burdensome. Certain items, or portions of certain items, are not objected to and defendant has indicated in its papers submitted in opposition to the motion that the material responsive to these demands was ready to be served.
The arguments offered by claimant in support of the motion do not particularize how any of the objections raised by defendant in its August 4th letter are unsupportable. No attempt is made to connect any of the objected-to items to the issue of qualified immunity. Rather claimant couches its arguments in general terms such as "the items sought ... are material, relevant and in fact essential to the prosecution of the instant action ..." and that "absent such disclosure the Claimant will be severely prejudiced."
While portions of the objected-to demands may be relevant to other issues in the action, the objections are appropriate insofar as they relate to the qualified immunity defense and in the absence of any particularized demonstration of how the material is relevant to that defense, should be sustained. The remaining objections, that a demand is overbroad or has already been answered, are, upon examination, also appropriate and again in the absence of any pointed argument to the contrary should likewise be credited.
Accordingly, it is
ORDERED, that the motion is denied.
February 4, 2021
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims