Long v. State
| Decision Date | 28 October 1969 |
| Docket Number | No. 49056,49056 |
| Citation | 33 A.D.2d 621,304 N.Y.S.2d 785 |
| Parties | Emma LONG et al., Respondents, v. STATE of New York, Appellant. Claim |
| Court | New York Supreme Court — Appellate Division |
Sneeringer & Rowley, Thomas J. Forrest, Albany, for respondents.
Louis J. Lefkowitz, Atty. Gen., J. Joseph Murphy, Albany, for appellant.
Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT and COOKE, JJ.
Appeal by the State from an order of the Court of Claims, entered on December 23, 1968, which granted claimants' motion for a further examination before trial.
The appellant was previously directed by an order of the Court of Claims, entered May 27, 1968, to produce representatives 'having knowledge of the relevant facts and material allegations of the facts put in issue by the claim herein' and also counsel, the sole representative produced by the State did not know the answers and would have to refer to various documents not then in his possession.
Following the examination before trial, the claimants' counsel wrote a letter to the appellant's representative demanding the production of the various documents referred to in the examination before trial but not then present and also requested the production of witness familiar with the documents. The appellant refused to comply with the demand because we believe the enumerated items in your letter, for the most part, are completely irrelevant and immaterial to this claim.'
The claimants thereupon moved for an order compelling the appellant to produce the documents demanded by them and witnesses who could testify as to such documents. The appellant opposed the motion primarily upon the ground that there are no issues presented by the present claim because the claimants had no cause of action against it as a matter of law.
The appropriate manner in which to determine whether or not a duly filed claim states a cause of action is by a motion to dismiss upon that ground and, accordingly, that question may not be interposed by way of opposition to discovery prodeedings.
The appellant notes that the claim is basically one of negligence on the part of the State 'in its design and construction of Watervliet Avenue Extension'. The things sought in this...
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