New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2000-015-088, Claim No. 100631, Motion No. M-62014


Synopsis


Pro se inmate claimant ordered to serve bill of particulars within 30 days. Absent showing of wilfulness defendant's request for penalties pursuant to CPLR 3042(d) is denied.

Case Information

UID:
2000-015-088
Claimant(s):
JACK JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100631
Motion number(s):
M-62014
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Jack Jones, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 3, 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 3042 (c) directing the claimant to serve a bill of particulars in response to the defendant's demand therefore dated November 10, 1999, within thirty days of the service upon him of a copy of this decision and order with notice of entry is granted. The request for relief pursuant to CPLR § § 3124, 3216 and 3134 is denied. This is a claim by an inmate appearing pro se to recover the sum of $69.75 as the reasonable value of a military blanket which was allegedly missing from claimant's personal property upon his release from a special housing unit. On November 10, 1999, the defendant served a demand for a verified bill of particulars to which the claimant has not yet responded.

Relief pursuant to CPLR 3124 is not available as that section concerns a failure to respond to a discovery demand, not the failure to serve a bill of particulars. CPLR 3216 involves a dismissal for want of prosecution, not the failure to serve a bill of particulars. CPLR § 3134 has been repealed.

The CPLR provision applicable to the facts alleged is CPLR Rule 3042 (c) which provides that when a party fails to serve a bill of particulars in a timely manner the party seeking the bill of particulars may move to compel compliance, and upon a demonstration that the failure is wilful may seek the penalties available under CPLR Rule 3042 (d). Here, the moving party has not demonstrated wilful or contumacious conduct and the relief will be limited to directing the claimant to serve a bill of particulars within 30 days of receipt of this decision and order with notice of its entry.


October 3, 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 July 12, 2000;
  2. Affirmation of Joel L. Marmelstein dated July 12, 2000, with exhibits;
  3. Claim filed on June 29, 1999;
  4. Demand for a verified bill of particulars filed on November 10, 1999.