New York State Court of Claims

New York State Court of Claims

WALOS v. THE STATE OF NEW YORK, #2000-015-030, Claim No. 098406, Motion No. M-61361


Synopsis


The failure of the claimant to comply with a prior order of this Court, together with his failure to oppose the motion establishes wilful and contumacious conduct sufficient to warrant dismissal of the claim.

Case Information

UID:
2000-015-030
Claimant(s):
JASON WALOS
Claimant short name:
WALOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
098406
Motion number(s):
M-61361
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Jason Walos, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 1, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The motion of the defendant for an order pursuant to CPLR 3126 dismissing the claim due to the claimant's wilful failure to disclose as directed by a prior order of this Court is granted. This is a claim by a former inmate appearing pro se to recover for personal injuries as the result of allegedly negligent medical care provided to him by employees of the Department of Correctional Services at Bare Hill Correctional Facility during December of 1997 through April of 1998. In addition, it is alleged that claimant sustained further injuries as a result of a slip and fall incident that occurred on January 31, 1998. Defense counsel served a demand for a bill of particulars and a combined discovery demand upon claimant on June 1, 1999. Claimant never served a bill of particulars or responses to the discovery demands resulting in the defendant's prior motion for an order pursuant to CPLR 3126 dismissing the claim. In a decision and order filed on December 1, 1999, the Court determined that at that juncture the defendant had not established wilful or contumacious conduct on the part of the claimant with respect to disclosure and granted relief under CPLR 3042 and 3124 directing the claimant to serve a bill of particulars and responses to the combined discovery demands within forty-five days of the service upon him of a copy of that decision and order with notice of entry. Defense counsel served a copy of that decision and order upon the claimant on January 20, 2000. Claimant has failed to comply with that order, resulting in this motion.

In the Court's view, the failure of the claimant to comply with the prior order of this Court together with his failure to oppose the motion establishes wilful and contumacious conduct sufficient to warrant the dismissal of the claim (Kihl v Pfeffer, 94 NY2d 118).


May 1, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated March 15, 2000;
  2. Affirmation of Paul F. Cagino dated March 15, 2000, with exhibit;
  3. Claim filed on June 4, 1998.