Opinion
# 2012-039-291 Claim No. 101116 Motion # 2012-039-291 Claim No. M-80453 # 2012-039-291 Claim No. M-80454 Cross-Motion No. CM-80815
03-13-2012
DOE v. STATE OF NEW YORK
Synopsis
Defendant's motion for leave to renew its summary judgment motion is denied, as defendant has not provided a reasonable justification for failing to include alleged "new evidence" in its original moving papers. Defendant's motion for an order compelling disclosure of claimant's criminal history is denied. Defendant has failed to establish that unusual or unanticipated circumstances exist justifying reopening of discovery in this matter to prevent substantial prejudice. Claimant's cross motion seeking additional discovery is also denied. Case information
UID: 2012-039-291 Claimant(s): JOHN DOE Claimant short DOE name: Footnote Because this claim involves an alleged victim of a sexual (claimant name) offense, the caption was previously amended to give the : claimant a fictitious name in order to protect his identity (See Civil Rights Law § 50-b). Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number 101116 (s): Motion number M-80453, M-80454 (s): Cross-motion CM-80815 number(s): Judge: James H. Ferreira Claimant's Mayer, Ross & Hagan, P.C. attorney: By: Robert W. Mayer, Esq. Hon. Eric T. Schneiderman Defendant's Attorney General of the State of New York attorney: By: Toni E. Logue Assistant Attorney General Third-party defendant's attorney: Signature date: March 13, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this claim, claimant alleges that he suffered damages as a result of, among other things, his wrongful termination from his position as a clinical assistant at Stony Brook University Hospital and Medical Center (hereinafter Hospital) following actions taken by Hospital staff constituting discrimination, sexual abuse and sexual harassment. The claim alleges seven separate causes of action including wrongful termination, negligence, intentional tort and breach of the Collective Bargaining Agreement (hereinafter CBA). Following the completion of discovery, defendant moved for summary judgment dismissing the claim (M-77245). By decision and order dated December 23, 2010, the Court (Ferreira, J.) denied the motion without prejudice on the ground that defendant had failed to attach a copy of the claim or its answer. Defendant thereafter filed a second motion for summary judgment (M-79426). By decision and order dated July 14, 2011, the Court (Ferreira, J.) granted summary judgment as to claimant's first, second, third, fourth and sixth causes of action and dismissed those causes of action in their entirety. The Court denied defendant's motion as to claimant's fifth and seventh causes of action.
There are three motions currently pending before the Court. Defendant first moves for an order directing claimant to disclose his criminal history. Defendant also moves for leave to renew its summary judgment motion as to claimant's seventh cause of action. Claimant opposes both motions and cross-moves for an order permitting him to depose Elizabeth McCoy, a Hospital employee. Defendant opposes the cross motion.
Turning first to defendant's motion for leave to renew, CPLR 2221 (e) provides, in relevant part, that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and shall contain reasonable justification for the failure to present such facts on the prior motion" (see JPMorgan Chase Bank, N.A. v Malarkey, 65 AD3d 718 [2009]; Estate of Essig v 5670 58 St. Holding Corp., 66 AD3d 822 [2009]). The determination of a motion to renew is a matter left to the Court's discretion (see e.g. Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1327 [2010], lv dismissed and lv denied 17 NY3d 770 [2011]; Smith v State of New York, 71 AD3d 866, 868 [2010]).
Claimant's seventh cause of action alleges that defendant breached the CBA between defendant and Hospital employees by terminating claimant based upon his sexual orientation (Claim ¶ 28). In denying defendant's motion for summary judgment as to this cause of action, the Court found that it was unable to determine from the evidence submitted by defendant whether the dispute was governed by a grievance procedure in the CBA which would preclude claimant from suing defendant directly for a breach of the agreement, as defendant did not submit a complete copy of the CBA in its motion papers. The Court also found that an issue of fact remained as to "whether the union breached its duty of fair representation to claimant" such that claimant could litigate his dispute directly against his employer (Doe v State of New York, Claim No. 101116, Motion No. M-79426, Ferreira, J. [July 14, 2011]).
Defendant now seeks renewal on the ground that there is "new evidence" that would change the Court's prior determination, namely, a complete copy of the CBA, which defendant has appended to its motion (Affirmation in Support of Motion to Renew ¶ 10). Defendant argues that it is entitled to summary judgment on claimant's seventh cause of action because the CBA demonstrates that claimant's allegations would not have been subject to review under Article 34 of the CBA, which governs the grievance process.
Defendant's motion for leave to renew is denied. Defendant has failed to provide a reasonable justification for its failure to include the full document in its original moving papers. Although defendant states in its reply affirmation that it did not believe that the entire CBA would be relevant to the Court's determination of its motion (Affirmation in Support dated Jan. 2, 2012 ¶ 5), renewal " 'is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation' " (Renna v Gullo, 19 AD3d 472, 473 [2005], quoting Rubinstein v Goldman, 225 AD2d 328, 329 [1996]; accord Ramirez v Khan, 60 AD3d 748, 748 [2009]; see Smith v State of New York, 71 AD3d at 868). In any event, the evidence submitted by defendant would not change the Court's prior determination. Rather, the CBA supports the Court's finding that an issue of fact remains as to whether this dispute is covered by a grievance procedure in the CBA (compare Ambrosino v Village of Bronxville, 58 AD3d 649, 651-652 [2009]).
Inasmuch as defendant requests in its reply affirmation that this Court consider this motion, in the alternative, as one for reargument, reargument is also denied, as the motion fails to establish that the Court " 'overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision' " (Loris v S & W Realty Corp., 16 AD3d 729, 730 [2005], quoting Peak v Northway Travel Trailers, 260 AD2d 840, 842 [1999]; see CPLR 2221 [d]; Barnett v Smith, 64 AD3d 669, 670-671 [2009]).
Turning next to defendant's discovery motion, this motion seeks an order compelling disclosure of claimant's criminal history from 2000 until the present, specifically information as to whether claimant has been ever been convicted of a misdemeanor or a felony and, if so, the details of such conviction or convictions. Defendant argues that this evidence will be relevant to assess claimant's credibility at trial. In opposition, claimant argues that defendant has failed to allege extraordinary circumstances justifying reopening discovery, that the information sought by defendant is overinclusive and not relevant to the claim, that defendant has failed to submit an affidavit of good faith indicating that attempts were made to resolve the matter prior to filing the motion, and that the correct procedural method to obtain additional discovery would be a motion to strike the note of issue. Claimant argues that, should this Court grant defendant's motion, it should also, in the interest of fairness, grant his cross motion to depose McCoy, a potential witness with knowledge of the circumstances who was heretofore unknown to claimant.
Rule 206.8 (b) of the Uniform Rules of the Court of Claims no longer requires an affidavit of good faith effort to resolve the dispute (see 22 NYCRR 206.8[b]).
The Court's records indicate that the note of issue and certificate of readiness was filed in this matter in November 2008. The Court has discretion, upon motion supported by affidavit, to allow further discovery following the filing of a note of issue and certificate of readiness, "[w]here unusual or unanticipated circumstances develop subsequent to the filing . . . which require additional pretrial proceedings to prevent substantial prejudice" (22 NYCRR 206.12 [c]; see LeFevre v State of New York, 176 Misc 2d 666, 674-675 [Ct Cl 1998]; see also Santiago v Spinuzza, 59 AD3d 939, 940 [2009]). The Court concludes that defendant has failed to establish that unusual or unanticipated circumstances exist justifying reopening of discovery in this matter to prevent substantial prejudice. In support of its motion, defendant states that, "[d]uring the time period that defendant's motion for summary judgment [was] pending, claimant's counsel asked for at least one adjournment based on his client['s] unavailability due to incarceration in another state" and argues that it is entitled to further discovery because it did not learn that claimant had a criminal history until after the note of issue was filed and because "a trial on the remaining causes of action will be occurring in this case" (Affirmation in Support of Motion ¶ 3). The Court finds the reasons proffered by defendant insufficient to justify reopening discovery, especially where this claim has been pending since 1999, discovery has been closed for over three years and the motion was filed only after the Court denied defendant's motion for summary judgment as to two of claimant's causes of action. Moreover, defendant has not shown that it will be substantially prejudiced if further discovery is denied. As such, defendant's motion to compel discovery is denied. Claimant's cross motion is also denied, as it seeks further discovery only if the Court grants defendant's motion and reopens discovery.
Rule 206.12 (d) of the Uniform Rules for the Court of Claims provides that, within 20 days after service of a note of issue and certificate of readiness, a party may move to strike the note of issue if the action is not ready for trial and that, "[a]fter such period, no such motion shall be allowed except for good cause shown (22 NYCRR 206.12 [d]). The Court notes that neither party has moved to strike the note of issue.
Accordingly, it is hereby ordered that M-80453, M-80454 and CM-80815 are denied. The parties are directed to contact the Court following receipt of this decision to facilitate the scheduling of trial.
March 13, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion for Discovery dated September 26, 2011;
2. Affirmation in Support of Motion for Discovery dated September 26, 2011;
3. Affirmation in Opposition to Motion for Discovery dated December 23, 2011;
4. Reply Affirmation in Support of Motion for Discovery dated January 2, 2012;
5. Notice of Motion to Renew dated September 26, 2011;
6. Affirmation in Support of Motion to Renew dated September 26, 2011 with exhibits;
7. Affirmation in Opposition to Motion to Renew dated December 23, 2011;
8. Affirmation in Support of Motion to Renew dated January 2, 2012;
9. Notice of Cross Motion dated December 23, 2011;
10. Affirmation in Support of Cross Motion dated December 23, 2011;
11. Affirmation in Opposition to Cross Motion dated January 3, 2012 with exhibit; and
12. Reply Affirmation in Support of Cross Motion dated January 7, 2012.