Defendant's motion to compel claimant to served expert disclosures by a date certain and to dismiss the claim if he fails to comply denied. Defendant failed to served claimant with a request for expert disclosure prior to make the instant motion, and in any event, the claim cannot be dismissed on that basis at this stage of the litigation.
|Claimant short name:||RICHINS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||TROVER RICHINS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 7, 2019|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries he suffered as a result of allegedly contracting H. pylori from the drinking water at Green Haven Correctional Facility (CF) in 2014. Defendant moves for an order compelling claimant to serve his expert witness disclosure and dismissing the claim if claimant fails to do so. Claimant has not opposed the motion, which will be denied for the reasons that follow.
The claim alleges that "[o]n or about May 28, 2014, claimant had a stool sample taken after reporting 'ulcer-like symptoms' " (Claim No. 125525, ¶ 2), that the stool sample tested positive for H. pylori (see id., unnumbered attachments [Clinical Report dated May 29, 2014]), and that claimant contracted H. pylori from the drinking water at Green Haven CF (see id. at ¶ 2). The claim alleges that a second stool sample taken from claimant on October 2, 2014 tested negative for H. pylori (see id., unnumbered attachments [Clinical Report dated October 3, 2014]).
In its motion to dismiss, defendant argues that claimant will be required to present expert medical testimony at trial in order to make out a prima facie case and that claimant has failed to serve expert disclosures as required by CPLR 3101 (d) (see Rubinstein Affirmation in Support of Motion to Preclude/Dismiss, ¶¶ 3-4). Defendant requests that the Court issue an order requiring claimant to serve its expert disclosures by November 5, 2019 and dismissing the claim if claimant fails to do so (see id. at ¶ 5). In its notice of motion, however, defendant seeks "an order dismissing the claim pursuant to C.P.L.R. § 3211 (a) (1), (2), (5), (7) and (8) and Court of Claims Act § 10 (9) on grounds that the Court lacks subject matter jurisdiction and personal jurisdiction over the claim, because the claim is untimely under the provisions of the Court of Claims Act" (Notice of Motion, dated September 16, 2019).(1)
CPLR 2214 (a) requires that "[a] notice of motion shall specify . . . the relief demanded and the grounds therefor" (see HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 774 [2d Dept 1991]). Because "a court is not required to comb through a litigant's papers to find information that is required to be set forth in the notice of motion," it may, in the exercise of its discretion, deny a motion based on the failure of the notice of motion "to sufficiently specify the relief sought" as required by CPLR 2214 (a) (see Abizadeh v Abizadeh, 159 AD3d 856, 857 [2d Dept 2018]). Where a notice of motion "include[s] a general demand for 'other, further and additional relief' " and the supporting papers address the omitted demand, the opposing party is not "prejudiced by the omission of a formal demand on the face of the notice of motion," and the court may grant the relief sought in the supporting papers but not demanded in the notice of motion (Kreamer v Town of Oxford, 96 AD3d 1130, 1132 [3d Dept 2012]).
Here, the relief requested in defense counsel's affirmation is completely unrelated to the relief demanded in the notice of motion. Moreover, the notice of motion contains no prayer for general relief and requests only dismissal for untimeliness pursuant to Court of Claims Act § 10 (9), which is clearly inapplicable to the instant claim. Because the relief demanded in the notice of motion is unrelated to the relief requested in the supporting papers and, indeed, appears to be unrelated to this claim entirely, defendant's motion will be denied.
In any event, defendant's motion lacks merit, regardless of the technical deficiency with respect to the notice of motion. CPLR 3101 (d) (a) (i) provides that
"[u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion."
The statute "clearly places the burden on the party seeking the information to take the initiative in requesting such information" (Collins v Greater N.Y. Sav. Bank, 194 AD2d 514, 514 [2d Dept 1993]), and it does not require a party "to respond to a demand for expert witness information at any specific time" (Aversa v Taubes, 194 AD2d 580, 582 [2d Dept 1993]; see Mead v Dr. Rajadhyax' Dental Group, 34 AD3d 1139, 1140 [3d Dept 2006]). Here, defendant's motion is devoid of any evidence that it served claimant with a demand for expert disclosure prior to seeking court intervention, and thus its motion to compel claimant to serve an expert disclosure will be denied (see Collins, 194 AD2d at 514 [concluding that "the defendant had no duty to supply the plaintiff with its expert's identity and the subject matter of the expert's testimony" because "(t)he record (was) devoid of any request by the plaintiff pursuant to CPLR 3101"]).
In any event, the relief defendant seeks in the instant motion - that is, dismissal of the claim in the event that claimant does not provide an expert disclosure - cannot be granted. The Court has been unable to identify any precedent, and defendant does not cite to any, that would require dismissal of a claim where a party has failed to serve an expert disclosure prior to trial. The proper remedy to pursue when a party fails to serve expert disclosures under CPLR 3101 (d) or seeks to call an undisclosed expert at trial is not dismissal of the claim but preclusion of the party's expert from testifying at trial, which "may be appropriate if there is prejudice and a willful failure to disclose" (Mead, 34 AD3d at 1140; compare Tleige v Troy Pediatrics, 237 AD2d 772, 774 [3d Dept 1997] [preclusion of expert witness testimony was warranted where plaintiff "fail(ed) to comply with expert disclosure without showing good cause"], with Schmitt v Oneonta City Sch. Dist., 151 AD3d 1254, 1256 [3d Dept 2017] [concluding that preclusion was not appropriate where plaintiffs did not serve expert disclosures but there was no evidence that the failure was willful]). Accordingly, should claimant serve an expert disclosure prior to trial or seek to call an expert without having served an expert disclosure, defendant may move to preclude that individual's testimony. Should a claimant fail to produce an expert witness at trial where expert testimony is required to establish prima facie a cause of action, defendant may make a motion to dismiss the claim for failure to make out a prima facie case at that time (see e.g. Siena v State of New York, 9 Misc 3d 1126[A], 2005 NY Slip Op 51803[U], *2 [Ct Cl 2005]; Eastwood v State of New York, UID No. 2018-038-112 [Ct Cl, DeBow, J., Sept. 20, 2018]; Williams v State of New York, UID No. 2016-038-108 [Ct Cl, DeBow, J., Apr. 22, 2016]).
Accordingly, it is
ORDERED, that defendant's motion number M-94587 is hereby DENIED.
October 7, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 125525, filed January 13, 2015;
2. Verified Answer, filed February 24, 2015;
3. Notice of Motion, dated September 16, 2019;
4. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion to Preclude/Dismiss, dated September 16, 2019, with Exhibit A;
5. Affidavit of Service of Francine Broughton, sworn to September 17, 2019.
1. Court of Claims Act § 10 (9) sets forth the timeliness requirements for claims by prison inmates seeking compensation for damaged or lost personal property.