New York State Court of Claims

New York State Court of Claims

MONTES v. THE STATE OF NEW YORK, #2000-015-080, Claim No. 100108, Motion No. M-61968


Synopsis


Conditional orders of dismissal granted regarding bill of particulars and discovery responses. Court declined to dismiss claim at this juncture lacking proof.

Case Information

UID:
2000-015-080
Claimant(s):
JOHN L. MONTES
Claimant short name:
MONTES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100108
Motion number(s):
M-61968
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
John L. Montes, Pro se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 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 3042 (d) dismissing the claim due to claimant's failure to serve a bill of particulars is granted, unless the claimant serves a bill of particulars within 30 days of the service upon him of a copy of this decision and order with notice of entry. The motion of the defendant for an order pursuant to CPLR 3124 directing the claimant to comply with the discovery demands dated August 11, 1999 is granted to the extent of directing the claimant to serve responses within 30 days of the service upon him of a copy of this decision and order with notice of entry. This is a claim by a former inmate to recover for personal injuries allegedly sustained when he fell from a bunk bed at Camp Georgetown Correctional Facility some time during February or March of 1999. The claim was filed on April 5, 1999 and the defendant's discovery demands and demand for a bill of particulars were served upon the claimant on August 11, 1999. Claimant never served responses resulting in this motion. The motion papers were served upon the claimant at the mailing address he provided to his parole officer.

At this juncture, the defendant has not established the type of wilful conduct which would warrant the imposition of the ultimate sanction of dismissal (Pimental v City of New York, 246 AD2d 467). As a consequence, the Court shall exercise its discretion under CPLR 3042 (c) and CPLR 3124 and accord claimant one last opportunity to comply with the defendant's discovery demands and demand for a bill of particulars.



September 19, 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 30, 2000;
  2. Affirmation of G. Lawrence Dillon dated June 30, 2000, with exhibits;
  3. Claim verified on April 5, 1999;
  4. Discovery demands filed on August 13, 1999;
  5. Demand for a bill of particulars filed on August 13, 1999.