New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2000-013-006, Claim No. 100416, Motion No. M-61293


Synopsis


Defendant's motion for order of preclusion against inmate claimant in medical neglect/malpractice claim is granted.

Case Information

UID:
2000-013-006
Claimant(s):
CARLTON SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100416
Motion number(s):
M-61293
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
CARLTON SMITH, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, 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 3, were read on Defendant's motion to preclude Claimant from offering any evidence in support of his claim:
Papers Numbered

Notice of Motion; Affirmation in Support;
Affirmation of Good Faith and Annexed Exhibits; 1, 2, 3


Claimant filed this action on May 21, 1999 to recover damages for medical neglect and/or malpractice he experienced while he was incarcerated and in the custody of the Department of Correctional Services. Defendant served its answer on June 21, 1999. With its answer, Defendant also served demands for a verified bill of particulars and other disclosure. The assistant attorney general responsible for this claim maintains that Claimant has not responded to the demands. He also avers that he brought the outstanding demands to Claimant's attention on January 14, 2000, when he wrote a letter to Claimant and advised him that he would move to preclude the offering of evidence in support of his claim if Claimant did not respond to the demands by February 25, 2000. Defendant has now moved to preclude Claimant from offering any evidence at trial relating to the particulars requested in its demand for a bill of particulars and from offering evidence with respect to the matter demanded in the CPLR Article 31 disclosure demands.

Since Claimant has not responded to Defendant's motion, I conclude that Claimant had no reasonable excuse for not responding to the demands.

CPLR 3126 gives me the discretion to impose sanctions upon a party who refuses to obey an order for disclosure or wilfully fails to disclose information which the Court finds ought to have been disclosed (DiDomenico v C & S Aeromatick Supplies, 252 AD2d 41; CPLR 3126[2]). The sanctions listed in the statute include the preclusion sanction that Defendant is seeking here. CPLR 3042 gives me the authority to impose similar sanctions against a party who wilfully fails to provide particulars which the Court finds ought to have been provided (see, CPLR 3042[d]).

On the record before me, I find that Claimant ought to have disclosed the information that Defendant requested in its demand for bill of particulars and other disclosure, and that his failure to provide that information was wilful (see, 6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3126.04 [failing to provide a satisfactory explanation to the Court for negligent or lackadaisical conduct may justify the imposition of sanctions]). The sanction of preclusion requested by Defendant is appropriately tailored to meet the circumstances of Claimant's conduct in this case (DiDomenico v C & S Aeromatick Supplies, 252 AD2d 41, supra). Upon review of the demands, I conclude that the requested sanction is dispositive and that Claimant will not be able to establish his claim if that sanction is imposed. It is therefore

ORDERED, that this claim will be dismissed without further order of this Court unless Claimant serves responses to Defendant's demand for bill of particulars and other disclosure demands upon Defendant, and files the original and two copies of those responses, with proof of service, with the Clerk of the Court by Friday, July 7, 2000.


May 14, 2000
Rochester, New York
HON. PHILIP J. PATTI
Judge of the Court of Claims