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Judge threatens to dismiss rugby suit

Judge John Ellis (Enterprise photo)

A judge has threatened to dismiss the complaint against one of the defendants in a Can-Am Rugby lawsuit.

On Oct. 18, state Supreme Court Judge John Ellis of Tupper Lake issued a conditional order striking the complaint against the town of St. Armand unless Dan Nelson’s attorney provides the town with information it repeatedly requested.

Nelson, a retired New York City firefighter from Long Island, suffered a serious head injury during a rugby game on Aug. 3, 2014, at a field behind the Bloomingdale Volunteer Fire Department.

He says organizers failed to have proper medical personnel on site and failed to provide proper medical treatment to him, claims that have been disputed by the defendants he named in the case: Can-Am Rugby, the Saranac Lake Volunteer Rescue Squad, the town of St. Armand and the village of Saranac Lake.

Earlier this year, the lawyer representing St. Armand, Lisa Kramer of New York City, filed a motion asking the lawsuit to be dismissed against her client because Nelson’s attorney hadn’t responded to her requests for Nelson’s medical, employment and insurance records, among other things. In May, Ellis ordered the Nassau County law firm representing Nelson to provide “all outstanding discovery” information within 30 days.

That apparently didn’t happen, as Kramer later filed another motion, on the same grounds, asking the judge to dismiss the complaint against the town. Heather Nathan, Nelson’s attorney, argued that the town was provided with the information it requested except for a few items she believes were improper or irrelevant.

In his Oct. 18 order, Ellis noted that if Nathan had objected to providing the information, she could have sought a protective order. The information the town is seeking has been outstanding for about a year, but Nelson’s attorney has yet to ask for a protective order, the judge wrote.

“In this court’s view, plaintiffs, through their inaction, have waived their objections to defendant’s discovery demands,” Ellis wrote. “The court is therefore directing plaintiff to provide the town of St. Armand with all outstanding discovery.”

Ellis wrote that the failure to respond to his prior order and numerous demands made by the town “constitutes precisely the sort of dilatory and obstructive conduct warranting the striking of plaintiff’s complaint.

“However, the court is balancing counsel’s inaction against the strong preference to have matters decided on the merits.”

The judge gave Nelson’s attorney 30 days to give the town the information it requested. Ellis scheduled a conference for Dec. 8 in Elizabethtown to determine whether the information has been provided.

The lawsuit was originally filed in Suffolk County, Long Island, in August 2015. It was transferred to Essex County in November of last year.

For now, the case is scheduled to go on trial Nov. 27 of next year at the Essex County Court House in Elizabethtown.

Essex County was also named as a defendant in the case, but the parties mutually agreed earlier this year to dismiss it from the proceedings.

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