New York State Court of Claims

New York State Court of Claims

RIPLEY v.THE STATE OF NEW YORK, #2000-015-075, Claim No. 100392, Motion No. M-61951


Synopsis


Summary judgment will be granted when a preclusion order prevents a claimant from establishing a prima facie case.

Case Information

UID:
2000-015-075
Claimant(s):
GIOVANNY RIPLEY
Claimant short name:
RIPLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100392
Motion number(s):
M-61951
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Giovanny Ripley, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Carla T. Rutigliano, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 21, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


There being no opposition, the motion of the defendant for an order pursuant to CPLR 3212 granting it summary judgment dismissing the claim upon the ground that the claimant is precluded from establishing a prima facie case by the terms of a decision and order of this Court dated February 3, 2000 is granted. This is a negligence claim by a former inmate who is appearing pro se and seeking to recover for personal injuries allegedly sustained on January 11, 1999 when he fell down a flight of stairs at the Oneida Correctional Facility. On June 23, 1999, the defendant served a demand for a bill of particulars to which the claimant failed to respond. Defendant's request for relief pursuant to CPLR 3042 was granted in a decision and order of this Court filed on February 3, 2000, which required, in pertinent part, that "the portion of the defendant's motion for an order pursuant to CPLR 3042 precluding the claimant from offering proof at the trial of this claim with respect to the matters for which particulars were demanded by the defendant's demand for a bill of particulars dated June 23, 1999 is granted, unless the claimant serves a bill of particulars upon the defendant within forty-five days of the service upon him of a copy of this decision and order with notice of entry." A copy of the decision and order with notice of entry was served upon the claimant on February 10, 2000. Claimant did not serve a bill of particulars, resulting in this motion.

A conditional order of preclusion becomes absolute upon a claimant's failure to comply entitling the defendant to summary judgment if the effect of the order is to prevent the claimant from establishing a prima facie case. To avoid such a result, it is incumbent upon the claimant to demonstrate both the potential merit of the claim and a reasonable excuse for his or her failure to comply with the prior conditional order (Tirone v Staten Is. Univ. Hosp., 264 AD2d 415; Clissuras v Concord Vil. Owners, 233 AD2d 475; DiPietro v Duhl, 227 AD2d 515). Here, the claimant did not serve a bill of particulars within forty five days of the service upon him of a copy of the conditional order of preclusion with notice of entry. The order thus became final and by its terms prevents the claimant from establishing a prima facie case of negligence on the part of the defendant. Furthermore, the claimant has not opposed the motion, much less established a potentially meritorious claim or presented a reasonable excuse for his default. Under these circumstances it would be an abuse of discretion to deny the requested relief.


August 21, 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 June 29, 2000;
  2. Affirmation of Carla T. Rutigliano dated June 29, 2000, with exhibits;
  3. Order of this Court filed on February 3, 2000;
  4. Demand for a verified bill of particulars filed on June 24, 1999.