Opinion
No. 51918.
10-14-2016
Curt FENIMORE, Individually and as Administrator of the Estate of Jennifer A. Fenimore and as parent Natural Guardian of Curt Fenimore, Jr., Nicholas Fenimore and Anthony Fenimore, Plaintiff, v. COUNTY OF WARREN and Town of Hague, Defendants.
McPhillips, Fitzgerald & Cullum, L.L.P., Glens Falls (Daniel J. Hogan of counsel) for plaintiff. FitzGerald Morris Baker Firth, P.C., Glens Falls (Joshua D. Lindy of counsel) for defendant County of Warren. Shantz & Belkin, Latham (M. Randolph Belkin of counsel) for defendant Town of Hague.
McPhillips, Fitzgerald & Cullum, L.L.P., Glens Falls (Daniel J. Hogan of counsel) for plaintiff.
FitzGerald Morris Baker Firth, P.C., Glens Falls (Joshua D. Lindy of counsel) for defendant County of Warren.
Shantz & Belkin, Latham (M. Randolph Belkin of counsel) for defendant Town of Hague.
ROBERT J. MULLER, J.
Defendant County of Warren (hereinafter the County) moves for a protective order and to quash a subpoena served by plaintiff upon a retired County employee requiring him to appear for a deposition and to produce various County documents. The County contends that plaintiff is seeking testimony and documents that are not relevant to the theories of liability specified in the notice of claim. Plaintiff opposes the motion and cross-moves for leave to serve an amended notice of claim to assert supplemental theories of liability in the event that the original notice of claim failed to adequately state such theories.
The facts underlying this litigation are set forth in an earlier decision (Decision & Order, December 30, 2010, Sup Ct, Warren County, Krogmann, J.). Briefly by way of background, on February 21, 2008, Jennifer A. Fenimore (hereinafter decedent) died when the vehicle she was driving left the road and struck a tree as she was traveling on New Hague Road (a/k/a County Route 21), a rural road in the Town of Hague, Warren County. Plaintiff (decedent's husband), acting individually, as administrator of decedent's estate and guardian of their three infant children (then ages 9, 4 and 2) served a notice of claim on May 13, 2008 and commenced this action against the County and Town of Hague (hereinafter the Town) in February 2009. Shortly after the action was commenced, defendants moved for summary judgment dismissing the complaint. In the above-referenced Decision & Order, Supreme Court denied so much of the motion as sought to dismiss the complaint in its entirety based upon a lack of prior written notice to defendants of the alleged dangerous condition of the road. The Court found that the prior written notice laws did not require dismissal because the claim asserted that defendants had affirmatively created dangerous conditions including, among other things, a faulty road design (see generally O'Buckley v. County of Chemung, 88 AD3d 1140, 1141 [2011] ). The Court did, however, grant so much of the County's motion as sought dismissal of plaintiff's claim that a guardrail should have been in place at the site of the accident since such theory had not been stated in the notice of claim.
Judge Krogmann has since retired and the case was reassigned to this Court.
Neither party perfected an appeal from that Decision & Order.
As relevant to the current motions, in July 2016 plaintiff served William E. Lamy with a "subpoena for non-party witness" seeking to take his deposition upon oral questions and directing him to produce various documents pertaining to road maintenance, shoulder maintenance, tree removal and clear zones. Lamy is the former Superintendent of Public Works for the County and he reportedly retired in July 2010. Since many of the demanded documents pertained to the proximity of trees to the road and/or a clear zone, the County made its motion seeking a protective order and to quash the subpoena contending that plaintiff was attempting to add a new theory or theories of liability which had not been included in the notice of claim. Plaintiff opposed the motion and made his cross motion for leave to serve an amended notice of claim asserting theories based on "clear zone," "fixed object" (i.e.tree) and "non-recoverable slope."
1. The County's motion to quash the non-party subpoena and for an order of protection.
The County contends that its motion should be granted because plaintiff is pursuing a new theory via the non-party subpoena. However, the merit of the County's contention regarding a new theory does not have to be addressed to decide the disclosure motion under the prevailing circumstances. The Court has broad discretion when considering disclosure and " ‘the fact that the material may later be ruled inadmissible does not foreclose disclosure’ " (American Heritage Realty, LLC v. Strathmore Ins. Co., 101 AD3d 1522, 1524 [2012], quoting Robinson v. Meca, 214 A.D.2d 246, 249 [1995] ). When subpoenaing a non-party, CPLR 3101(a)(4) requires "the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure in sought or required" (Bianchi v. Galster Mgt. Corp., 131 AD3d 558, 559 [2015] [internal quotation marks and citations omitted] ). If that low statutory hurdle is cleared, then the party or person opposing the subpoena "must establish either that the discovery sought is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious" (Matter of Kapon v. Koch, 23 NY3d 32, 34 [2014] [internal quotation marks omitted] ). "Should the [opponent to the subpoena] meet this burden, the subpoenaing party must then establish that the discovery sought is ... relevant" (id. ).
Here, the non-party subpoena served by plaintiff indicates that information is being sought relative to the road where the accident occurred. The individual being subpoenaed was, until he retired, the Superintendent of Public Works for the County, and his retirement occurred after the date of the accident. Plaintiff satisfied the initial statutory threshold. The County failed to establish that Lamy's testimony would be utterly irrelevant and, in fact, by reason of his former position he clearly may have knowledge of information relevant to this litigation. The fact that plaintiff may be also attempting to elicit from him information that may ultimately be inadmissible provides no basis to prevent the taking of Lamy's deposition.
With respect to the documents demanded in the subpoena, plaintiff is demanding various County records and, since Lamy is no longer employed by the County, he cannot be compelled to produce documents which he does not possess and no longer has any right to obtain (see Argo v. Queens Surface Corp., 58 AD3d 656, 656–657 [2009] ). The County's motion is granted only to the extent that Lamy is not required to produce records which he does not possess and does not have authority to obtain; but, the motion is otherwise denied. The deposition upon oral questions of Lamy shall be conducted within 45 days of the date of this Decision and Order.
2. Plaintiff's Cross–Motion for Leave to Serve an Amended Notice of Claim
Plaintiff initially asserts that his motion is unnecessary since his notice of claim included sufficient allegations to encompass the theories of a clear zone, fixed object (i.e.tree) and non-recoverable slope. While the requirements of General Municipal Law § 50–e are liberally construed consistent with the statutory purpose of providing sufficient information to investigate the claim (see Brown v. City of New York, 95 N.Y.2d 389, 393 [2000] ), nevertheless it is settled that, absent leave of court, "[a] party may not add a new theory of liability which was not included in the notice of claim" (Williams v. County of Westchester, 103 AD3d 796, 797 [2013] ; see Crew v. Town of Beekman, 105 AD3d 799, 800–801 [2013] ; Friedland v. County of Warren, 61 AD3d 1138, 1139 [2009] ; Gagnon v. City of Saratoga Springs, 51 AD3d 1096, 1099 [2008], lv denied 11 NY3d 706 [2008] ). Plaintiff's notice of claim states, in pertinent part:
The claims are based upon the negligence of the County and [Town] in designing, constructing and failing to maintain the [subject] portion of New Hague Road ..., to wit: for failure of the [County] and the [Town] to properly design, construct and maintain that portion of New Hague Road ... which portion of said road was unsafe and in a dangerous condition. Upon information and belief, that portion of New Hague Road ... was in a dangerous and unsafe condition on February 21, 2008. Upon information and belief that hazardous and dangerous condition existing on New Hague Road ... was caused by the County and the Town ... in failing to divert and remove the accumulation of water, snow and ice upon New Hague Road ..., failing to salt and sand that portion of New Hague Road ... where the accident occurred, failing to erect any warning signs alerting traffic of the hazardous and dangerous condition ... where the accident occurred and failing to design and/or construct such road so as to prevent accumulation of water, snow and ice upon it.
There are no allegations regarding theories of a clear zone, fixed object or non-recoverable slope, which are separate theories not encompassed by general allegations of negligent highway design or conditions (see Williams v. County of Westchester, 103 AD3d at 797 ; see also Lindquist v. County of Schoharie, 126 AD3d 1096, 1099 [2015] ; Preston v. State of New York, 6 AD3d 835, 835–836 [2004], lv denied 3 NY3d 601 [2004] ). Indeed, in the earlier decision in this case, Supreme Court granted summary judgment dismissing plaintiff's claim regarding the lack of guardrails because such claim was not raised in the notice of claim. Likewise, the notice of claim fails to encompass theories based on a clear zone, fixed object or non-recoverable slope.
In considering plaintiff's application for leave to serve an amended notice of claim asserting the additional theories. "[A] court, ‘in its discretion,’ may grant an application extending the time to serve a notice of claim as long as the application is made within the limitations period for commencing the action, including any tolls or extensions" (Plaza v. New York City Health & Hosps. Corp. [Jacobi Med. Ctr.], 21 NY3d 983, 984 [2013], quoting General Municipal Law § 50–e [5 ]; see also Wally G. v. New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672, 675 [2016] ). Although the limitations period has long since expired on claims for plaintiff individually and as administrator of decedent's estate, the oldest child has just turned 18 and, accordingly, the infancy toll allows consideration of the application with respect to the claim on behalf of the children (see CPLR 208 ; Matter of Conger v. Ogdensburg City School Dist., 87 AD3d 1253, 1254 [2011] ). "[I]n determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, (2) the [plaintiff] was an infant at the time the claim arose and, if so, whether there was a nexus between the [plaintiff's] infancy and the failure to serve a timely notice of claim, (3) the [plaintiff] demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits" (Babcock v. Walton Cent. School Dist., 119 AD3d 1061, 1063 [2014] [internal quotation marks, citations and brackets omitted] ).
The original notice of claim was served within 90 days of the accident and, further, several County employees had been involved in either investigating or visiting the accident scene. The County had knowledge that the accident occurred and that the vehicle had slid off the road where it eventually struck a tree. Although the children were all infants when the claim arose, there is no nexus between their infancy and the failure to pursue additional theories premised on conditions off the road. A reasonable excuse has not been demonstrated. To the extent there was any reason to believe that plaintiff's notice of claim might extend to theories not clearly set forth therein, such belief should have been discarded nearly six years ago when Supreme Court dismissed that part of the claim based upon the absence of a guardrail upon the ground that such theory had not been included in the notice of claim. The guardrail theory, like the ones plaintiff now seeks to add, was not within the scope of the notice of claim (see e.g. Williams v. County of Westchester, 103 AD3d at 797 ["(n)othing in the plaintiff('s) notice of claim would have alerted the County to the need to investigate the issues of guardrails, clear zones, or unprotected trees on the side of the parkway"] ). With respect prejudice, although the County had general knowledge of the underlying accident, it had no reason to anticipate or prepare for new theories asserted over seven years after the action was commenced. Plaintiff's complaint alleged, in relevant part, that defendants had: "negligently designed, construction, maintained and repaired [the road]"; "negligently designed ... the road allow[ing] for the accumulation of water, ice and snow without proper drain systems in place"; "failed to erect any sign which would have alerted decedent"; and "failed to erect any guardrail which would have protected decedent". Similarly, plaintiff's bill of particulars alleged: "[d]efendants ... negligently and wrongfully designed, constructed, maintained and repaired [the road], ... negligently designed that portion of the road that allowed for the accumulation of water, ice and snow without proper drain systems in place, failed to erect any sign which would have alerted decedent ... and failed to erect any guardrail which would have protected decedent". As already mentioned, Supreme Court dismissed the portion pertaining to guardrails because no mention had been made in the notice of claim; and, now, many years into the litigation, plaintiff is attempting to pivot to off-road theories of liability not mentioned in the notice of claim, complaint or bill of particulars. It appears that the terms "clear zone," "fixed object" and "non-recoverable slope" are first set forth in papers filed by plaintiff with the Court in plaintiff's August 22, 2016 Notice of Cross–Motion and first set forth in a pleading in the proposed amended notice of claim dated September 15, 2016. Under all the circumstances, the Court is unpersuaded that plaintiff should be granted leave to amend and serve a late notice of claim asserting new theories of liability at this time. Plaintiff's cross-motion is thus denied.
The Court notes that the above factors are not exclusive, and the merit of a proposed claim can be weighed as part of the calculus (see Miller v. County of Sullivan, 36 AD3d 994, 996 [2007] ; Forrest v. Berlin Cent. School Dist., 29 AD3d 1230, 1231 [2006], appeal dismissed 7 NY3d 896 [2006] ). The Appellate Division has held that, absent a record of prior accidents at the scene, generally "[t]he presence of trees or shrubbery in close proximity to the roadway is to be expected in rural areas and does not create an unreasonable danger" (Howard v. Tylutki, 305 A.D.2d 907, 908 [2003] [internal quotation marks and citations omitted]; see Hay v.. State of New York, 60 AD3d 1190, 1192–1193 [2009] ). While the Court does not give substantial weight to such factor, nonetheless the apparent weakness of the new theories does not bolster plaintiff's position.
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Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is
ORDERED that the motion of defendant County of Warren is granted, in part, to the extent that non-party William E. Lamy is not required to produce records of the County that he does not possess and does not have authority to obtain; and it is further
ORDERED that the motion of defendant County of Warren is otherwise denied and the deposition of William E. Lamy shall be rescheduled and conducted within 45 days of the date of this Decision and Order; and it is further
ORDERED that the cross-motion of plaintiff for leave to serve an amended notice of claim is denied; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Order to Show Cause of the County, dated August 9, 2016, and the Notice of Cross–Motion of Plaintiff, dated August 22, 2016. Counsel for defendant County of Warren is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the other parties in accordance with CPLR 5513.
Papers reviewed:
1. Affirmation of Joshua D. Lindy, Esq., dated August 2, 2016, in Support of Order to Show Cause of the County to Quash Subpoena and Issue a Protective Order, annexed Exhibits "A" through "H".
2. Affidavit of Daniel J. Hogan, Esq., sworn to August 22, 2016, in Opposition to the County's motion and in Support of Plaintiff's Cross–Motion, annexed Exhibits "A" through "N".
3. Affidavit of Denise Page Smith, sworn to August 28, 2015[sic], in support of Plaintiff, annexed Exhibits "A" through "C".
4. Plaintiff's Memorandum of Law, undated, annexed Exhibits "1" through "3".
5. Affirmation of Joshua D. Lindy, Esq., dated September 14, 2016, in Opposition to Plaintiff's Cross–Motion, annexed Exhibits "A" through "H".
6. Reply Affirmation of Joshua D. Lindy, Esq., dated September 21, 2016, in Reply to Plaintiff's Opposition to the County's Motion, annexed Exhibit "A".
7. Reply Letter of Daniel J. Hogan, Esq., dated September 21, 2016, in Reply to the County's Opposition to Plaintiff's Cross–Motion, annexed Exhibits "1" through "4" and Oral argument held before the Court on September 28, 2016, with Joshua D. Lindy, Esq. appearing in support of the motion, Daniel Hogan, Esq. appearing in opposition to the motion and in support of plaintiff's cross-motion, and M. Randolph Belkin, Esq., appearing on behalf of the Town of Hague, which takes no position as to these controversies.