Grow Const. Co. v. State

• Decision Date: 12 January 1970
• Docket Number: No. 51499,51499
• Citation: 61 Misc.2d 697,306 N.Y.S.2d 582
• Parties: GROW CONSTRUCTION CO., Inc., Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 582

306 N.Y.S.2d 582

61 Misc.2d 697

GROW CONSTRUCTION CO., Inc., Claimant, v. The STATE of New York, Defendant.

Claim No. 51499.

Court of Claims of New York.

Jan. 12, 1970.

Berman, Paley, Goldstein & Berman, New York City, for claimant, David Paley, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., for the State, J. Joseph Murphy, Asst. Atty. Gen., of counsel.

MEMORANDUM-DECISION

ALEXANDER DEL GIORNO, Judge.

In these motions, claimant seeks a protective order vacating the defendant's Notice of Examination and an order granting its own motion for an examination before trial. At issue here are the questions of priority of examinations before trial and the definiteness and permissibility of predicating an examination before trial on the demand for, and therefore the service of, a bill of particulars.

Notice of Claim was filed on September 18, 1969 and five days later, on September 23, 1969, claimant, on the basis of an annexed affidavit, moved for an examination before trial of such officers and employees of the defendant as have knowledge of the facts as well as for the production of any documents in the hands of the defendant for use pursuant to Article 31 of the CPLR.

On October 3, 1969, fifteen days after the filing of the notice of claim, the defendant served upon the claimant a Notice of Examination before Trial in which the return date was set at '* * * 2 o'clock in the afternoon of a day that is ten days after the filing and service of a proper bill of particulars * * *.' A demand for a bill of particulars was in fact served on the claimant on October 10, 1969.

On October 15, 1969, claimant's motion for an examination before trial was granted after argument provided that '* * * the State shall not be examined until at least fifteen days after receipt of a Bill of Particulars, to be served by the claimant upon a Demand already filed and served. * * *' At that time the Court reserved decision on the question of priority of examination before trial and requested the submission of additional memoranda of law on the subject. On November 5, 1969, decision was also reserved on claimant's motion for a protective order against the State's Notice of Examination.

Claimant's arguments in favor of priority of examination are basically threefold. The first objection, raised on oral argument, is that the normal rules of priority are inapplicable. Rule 3106(a) of the CPLR provides as follows:

(a) Normal priority. After an action is commenced, any party may take the testimony of any person by deposition upon oral or written questions. Leave of court, granted on motion, shall be obtained if notice of the taking of the deposition of a party is served by the plaintiff within twenty days After service of the complaint. (Emphasis added.)

Thus the Statute contains a built-in priority in favor of the defendant since the claimant must move before the Court if within twenty days after commencement of the action he wishes to serve notice of an examination before trial.

Claimant argues that this priority is inapplicable, thereby giving him priority as first movant, since the 20 days are provided only to give the defendant time to serve a proper answer without fear of losing his right to priority of examination for failure to immediately serve notice of an examination before trial. Claimant argues that since Rule 13 of the Court of Claims (22 NYCRR 1200.14) provides that the State need not answer a claim, all allegations therein being treated as denied, the necessity of the 20-day priority in favor of the defendant has been obviated on the ground that issue was joined upon filing of the claim.

Such a construction is contrary to both the intent and express language of the statute. The reason underlying the built-in priority is that

* * * the defendant is blameless until the plaintiff proves him otherwise; therefore, in the absence of special circumstances, he should be given the chance to examine first in order to find out what the case is about. * * * 3 Weinstein-Korn-Miller, New York Civil Practice 3106.2 (1967).

The Courts of New York have liberally effectuated this intent to guarantee the defendant priority in situations even where time to answer has been extended beyond the 20-day period. (See, e.g., Mastro Plastics Corp. v. Emenee Ind., 151 N.Y.L.J. No. 76 (April 17, 1964), p. 14, col. 4 (plaintiff served summons in a manner allowing defendant thirty days to answer); Williams v. H. R. Weissberg Corp., 24 A.D.2d 940, 265 N.Y.S.2d 48 (1st Dep't 1965) (plaintiff stipulated an extension of defendant's time to answer); Fund of Funds, Ltd. v. Waddell & Reed, Inc., 26 A.D.2d 809, 274 N.Y.S.2d 177 (1st Dep't 1966) (defendant made a corrective motion extending his time to answer).) This defendant cannot be presumed any the less blameless simply because it need not file an answer.

Claimant's novel argument also overlooks the plain wording of the statute. Rule 3106(a) of the CPLR requires the plaintiff to seek court permission in order to serve notice of an examination before trial only if he attempts to serve such notice 'within twenty days After service of the complaint.' (Italics supplied) Thus, service of the complaint and not joinder of issue is the key to the computation of the twenty-day period. Had the draftsmen of the Code intended the built in priority of CPLR 3106(a) to apply only in the event that an answer was required, they could easily have inserted language that would permit the construction desired by the claimant.

In addition, this Court cannot believe that the State, having waived its sovereign immunity, is now to be placed in such a disadvantageous position as to be denied the same reasonable period of time that is available to any other defendant in every other Court in the State of New York. Besides, even though issue is joined on the mere filing of the Notice of Claim, the State, pursuant to Rule 14 of the Court of Claims (22 NYCRR 1200.15) can, within twenty days after the filing of the notice, serve a counterclaim. Implicit in this is the continued existence of the right of priority of examinations before trial, even though service of an answer is unnecessary.

Claimant's second contention in favor of priority of examinations before trial vacillates between two positions. One is that the claimant has the right to obtain priority on mere motion, while it alternatively argues that a motion coupled with special circumstances, which have here been shown, entitle claimant to priority. The Court rejects the first alternative on the law and the second on the facts. To assume that the Court has no discretion in these matters and to require the defendant to submit to an examination on mere motion by the claimant without any showing of special circumstances would emasculate the intent of the...