New York State Court of Claims

New York State Court of Claims
JOE v. THE STATE OF NEW YORK, # 2018-041-077, Claim No. 123355, Motion No. M-92704, Cross-Motion No. CM-92800


Claimant's motion to amend scheduling order and extend his time to disclose additional expert witnesses is granted; defendant's cross-motion to stay accrual of statutory interest on claimant's liability judgment due to claimant's delay in damages trial readiness is denied.

Case information

UID: 2018-041-077
Claimant(s): BYUNG CHOON JOE
Claimant short name: JOE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123355
Motion number(s): M-92704
Cross-motion number(s): CM-92800
Claimant's attorney: NAPOLI SHKOLNIK, PLLC
By: Joseph Napoli, Esq.
Defendant's attorney: LONDON FISCHER, LLP
By: Shorav Kaushik, Esq.
Anthony F. Tagliagambe, Esq.
Third-party defendant's attorney:
Signature date: November 20, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves to extend his time to disclose additional expert witnesses beyond the period provided for in the Court's Conference Order of September 29, 2017 (Order), which set a damages trial date certain and set time limits for expert witness disclosure. Claimant seeks to extend his time to disclose additional expert witnesses. Defendant opposes claimant's motion and cross-moves to stay accrual of statutory interest on claimant's liability judgment based on claimant's alleged delay of the damages trial. Claimant opposes defendant's cross-motion.

Claimant was granted summary judgment as to defendant's liability pursuant to Labor Law 240 (1) on April 4, 2017. The Court issued a scheduling/discovery Conference Order (Order) on September 29, 2017, setting a damages trial date certain of April 30, 2018. The Order directed claimant to serve expert disclosure on or before January 15, 2018 and further directed defendant to serve its expert disclosure on or before February 15, 2018.

On or about March 6, 2018, after expert disclosure had been completed, a motion was made by claimant's present attorney to be substituted for claimant's prior attorney. On April 5, 2018, during a telephone conference, which included claimant's present and prior attorneys and defendant's attorney, the Court was advised that the motion to substitute attorneys would be withdrawn, a consent to change attorney would be executed, and a request would be made to the Court by claimant to adjourn the damages trial and to retain additional experts and/or engage in additional discovery. Defendant advised that it was prepared to try the case as scheduled, would oppose further discovery proceedings and would object to the testimony of experts not previously disclosed pursuant to the Order.

On April 10, 2018, a consent to change claimant's attorney was filed with the Clerk of the Court of Claims and the motion to substitute attorneys was withdrawn. On April 13, 2018, at the request of claimant's new attorney, the damages trial scheduled for April 30, 2018, was adjourned without date. Defendant was, at all times, prepared to proceed to trial in compliance with the Order.

On April 19, 2018, claimant's attorney again advised the Court and defendant's attorney that he intended to retain and disclose additional expert witnesses, including an economist and vocational rehabilitation expert. Defendant again expressed its opposition to claimant's intention to engage in additional discovery and to retain additional experts. Claimant was advised by the Court on that date to move for permission to retain and disclose additional experts, if he so elected.

On June 21, 2018, a telephone conference was held regarding these issues and claimant's attorney was again advised to make his motion to amend the Order to allow for retention and disclosure of additional expert witnesses.

On June 27, 2018, claimant's attorney submitted a letter and voluminous attachments to the Court and to defendant's attorney in which claimant argued for permission to disclose, and present trial testimony of, additional expert witnesses. On July 2, 2018, defendant's attorney responded in writing to claimant's attorney's letter of June 27, 2018 and requested that claimant's application to retain and disclose additional experts and defendant's request for a stay of interest (due to claimant's alleged undue delay in proceeding to trial) be "resolved through motion practice so that both sides have the opportunity to set forth their respective arguments."

On July 12, 2018, in a telephone conference with the Court, claimant was again advised to make his motion for permission to amend the Order to retain and disclose additional experts.

Claimant's motion to amend the Order to extend his time to disclose additional experts was eventually made on August 14, 2018 and defendant's cross-motion to stay statutory interest was made on September 6, 2018.

It is axiomatic "that a trial court has broad discretionary power in controlling discovery and disclosure, and only a clear abuse of discretion will prompt appellate action" (Geary v Hunton & Williams, 245 AD2d 936, 938 [3d Dept 1997]). Further, a trial court "has the authority to control its calendar by establishing schedules and timetables" (Harrington v Palmer Mobile Homes, Inc., 71 AD3d 1274, 1274 [3d Dept 2010])

Despite a nearly four (4) month delay in making the appropriate motion to amend the Order, claimant's attorney has generally acted expeditiously, both before and after being substituted as claimant's attorney of record, in advising the Court and defendant's attorney that claimant would be requesting an adjournment of the damages trial and permission to serve additional expert disclosure.

Defendant has set forth no evidentiary basis for claiming that it would be prejudiced by claimant disclosing additional experts other than its assertion that delay would increase the period in which judgment interest accrues.

Claimant's time to serve expert witness disclosure is extended for forty-five (45) days following the filing of this Decision and Order. Defendant is directed, should it so choose, to serve additional expert witness disclosure within ninety (90) days after service upon it of claimant's expert witness disclosure.

Defendant's cross-motion for suspension of statutory interest will be considered next. The Court of Claims Act states that "[i]nterest shall be allowed on each judgment of the court of claims from the date thereof until payment is actually made" (Court of Claims Act 20 [7]).

In certain limited circumstances, the Court of Claims Act permits suspension of judgment interest: Pursuant to 19 (4), for real property appropriation claims, and at 20 (5-a) and 20 (7) (a) and (b), involving specific post-judgment procedural issues not present here (see 8B Carmody-Wait 2d New York Practice with Forms, September 2018 Update, 63:118, Suspension of interest in court of claims--On judgment).

In O'Shea v State, Office of Comptroller (281 AD2d 774, 777 [3d Dept 2001]), the court held that "Court of Claims Act 20 (7) does not contain a provision for discretionary suspension of interest." Pursuant to the O'Shea holding, the Court lacks a statutory basis to grant the relief requested.

The Court's decision in this regard is fully consistent with Love v State of New York (78 NY2d 540 [1991]) which pointed out, at 544, that:

"[I]nterest is not a penalty. Rather, it is simply the cost of having the use of another person's money for a specified period (see, Siegel, NY Prac 411, at 623 [2d ed]). It is intended to indemnify successful plaintiffs 'for the nonpayment of what is due to them' (Trimboli v Scarpaci Funeral Home, supra, at 389), and is not meant to punish defendants for delaying the final resolution of the litigation."

Love held, at 545, that "in a bifurcated personal injury action prejudgment interest under CPLR 5002 should be calculated from the date of the liability determination irrespective of whose fault it may be that the assessment of the plaintiff's damages is delayed."

Defendant's cross-motion for suspension of statutory interest is denied.

November 20, 2018

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion, filed August 15, 2018;

2. Affirmation of Joseph Napoli, dated August 14, 2018, and annexed exhibits;

3. Defendant's Notice of Cross-Motion, dated September 6, 2018;

4. Affirmation of Shorav Kaushik, dated September 6, 2018, and annexed exhibits;

5. Affirmation of Joseph Napoli, dated September 11, 2018, and annexed exhibits;

6. Sur-Reply affirmation of Anthony F. Tagliagambe, dated September 14, 2018, and annexed exhibits.