New York State Court of Claims

New York State Court of Claims

BORGES v. THE STATE OF NEW YORK, #2000-013-004, Claim No. 99651, Motion No. M-61228


Synopsis


Inmate Claimant's motion to compel former employee of Defendant to respond to interrogatories is denied.

Case Information

UID:
2000-013-004
Claimant(s):
DOMINGO BORGES
Claimant short name:
BORGES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99651
Motion number(s):
M-61228
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
DOMINGO BORGES, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: Earl F. Gialanella, Esq.
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 14, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On March 15, 2000, the following papers, numbered 1 through 6, were read on Claimant's motion to compel:
Papers Numbered

Notice of Motion; Affidavit in Support and
Annexed Exhibit 1, 2

Affirmation in Opposition 3
Claimant's Interrogatories to Ted Lax, DDS 4

Filed Papers: Claim, Answer 5, 6


In this action for dental malpractice and negligence, Claimant alleges that Ted Lax, DDS, a dentist at the Southport Correctional Facility, left a foreign metal object lodged in his jaw when Lax removed one of Claimant's wisdom teeth.

In an effort to develop his case, Claimant served interrogatories on Defendant on January 18, 2000 and asked that Dr. Lax answer them. On January 20, 2000, Defendant responded that Lax was no longer employed by the State of New York and that, therefore, Defendant was not required to obtain a response from Dr. Lax. Defendant also made clear that it would respond to any non-objectionable interrogatories provided Claimant eliminated the questions directed to Dr. Lax personally.

In the instant motion, Claimant argues that Defendant should be compelled to procure interrogatory answers from Dr. Lax.

Claimant is not correct. The CPLR permits service of interrogatories as a means of obtaining disclosure, but provides that that discovery device may only be used to obtain disclosure from parties in the action (see, CPLR 3130). Where the party upon whom the interrogatories are served is an entity rather than a natural person, the interrogatories are to be answered by "an officer, director, member, agent or employee having the information" (CPLR 3133[b]).

Dr. Lax plainly is not a party. Though he was once an employee of Defendant, he is not one any longer. Defendant has neither the obligation nor the power to compel Dr. Lax to answer the interrogatories. The motion is therefore denied.


May 14, 2000
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims