New York State Court of Claims

New York State Court of Claims

LaRocco v. THE STATE OF NEW YORK, #2000-007-004, Claim No. 100391, Motion Nos. M-61273, CM-61274


Synopsis


Claimant's demand to compel disclosure denied because demands palpably broad and onerous. Part of claim dismissed as untimely.

Case Information

UID:
2000-007-004
Claimant(s):
DOMINICK LaROCCO, # 97-A-6278
Claimant short name:
LaRocco
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100391
Motion number(s):
M-61273
Cross-motion number(s):
CM-61274
Judge:
JOHN L. BELL
Claimant's attorney:
DOMINICK LaROCCO, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(SAUL ARONSON, ESQ., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
April 6, 2000
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has made an application for an order granting default judgment and penalties for refusal of defendant to provide disclosure. Defendant has made an application for partial summary judgment and dismissal. The following papers were read and considered by the court:

Notice of Motion, Affidavit of Good Faith,

Affidavit in Support of Claimant, Annexed
Exhibits 1, 2, 3, 4


Notice of Cross-Motion, Affirmation of
Saul Aronson, Esq., Annexed Exhibits 5, 6, 7

Letter from Claimant, dated February 25, 2000 8

Filed Papers: Claim, Answer 9, 10


Claimant alleges, inter alia, that he did not receive proper dental treatment for his periodontal problems while incarcerated at
Clinton Correctional Facility
. He served and filed a claim on May 18, 1999 seeking monetary damages of $300,000. An answer was filed on June 25, 1999 and, thereafter, claimant served various disclosure demands. Defendant served a response to claimant's demands in which it provided some of the demanded materials, such as records of claimant's dental treatment. Defendant refused to respond to many of the demands, and the Assistant Attorney General informed claimant that it was the State's position that such demands suffered several severe deficiencies. Claimant thus filed a motion seeking judgment against defendant for its alleged failure to fully disclose.

The scope and supervision of disclosure is a matter within the discretion of the court (Capoccia v Brognano, 126 AD2d 323, 328). A party's right to disclosure is not unlimited (see, Butterman v R.H. Macy & Co., 33 AD2d 746, affd 28 NY2d 722), and disclosure may be curtailed where the demands become an unreasonable annoyance, tending to harass and overburden the other party (Richards v Pathmark Food Store, 112 AD2d 360). The test is one of usefulness and reason (Williams Real Estate Co. v Viking Penguin, 216 AD2d 27, 28; Conrad v Park, 204 AD2d 1011, 1012). The court is not required to prune palpably broad and onerous disclosure demands (see, e.g., Blank v Schafrann, 180 AD2d 886; Rush v Insogna, 119 AD2d 879).

Claimant's interrogatories are full of objectionable requests. For example, claimant seeks the age, height, weight and ethnicity of all dentists at Clinton who treated him. Such information is irrelevant to the issues implicated in the litigation. The interrogatories and disclosure demands suffer numerous deficiencies, including being argumentative, unclear, overly broad and unduly burdensome. Claimant is clearly not entitled to a court order enforcing the improper interrogatories and disclosure demands and therefore his motion is denied.

Defendant has cross-moved to dismiss upon the ground that many of the allegations in the claim involve events that occurred more than 90 days before the claim was served. A claim premised upon negligence or malpractice must be served and filed within 90 days of accrual (Court of Claims Act § 10). The filing requirements are jurisdictional and, if properly asserted by defendant, cannot be disregarded by the court (see, Finnerty v New York State Thruway Auth., 75 NY2d 721; Downes v State of New York, 76 AD2d 967).

Here, it appears that claimant is asserting two theories of liability. He contends he was subjected to dental malpractice and he further contends that various employees at Clinton refused to permit him to see dentists at the facility. The court will not dismiss, at this juncture, any aspect of the claim related to purported dental malpractice because it appears that a factual issue exists as to whether the continuous treatment doctrine applies (see, CPLR 214-a; Easton v Kellerman, 248 AD2d 913; Ogle v State of New York, 142 AD2d 37).

However, the purported incidents that do not involve treatment and which are alleged to have occurred more than 90 days before the claim was filed and served are jurisdictionally defective. For example, in paragraph 2 of the claim, claimant asserts that a correction officer refused to permit him to see a dentist on numerous occasions. All of the dates recited by claimant in paragraph 2, except the date of May 6, 1999, occurred more than 90 days before service and filing of the claim. Actions by correction officers cannot be tolled by the continuous treatment doctrine. Therefore, defendant's motion is granted, in part, and the aspects of the claim that allege actions prior to February 17, 1999 (90 days before the date of service and filing) by individuals not providing medical or dental treatment is dismissed. Defendant's motion is otherwise denied.



April 6, 2000
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims