New York State Court of Claims

New York State Court of Claims

CARSON v. THE STATE OF NEW YORK, #2000-015-106, Claim No. 102370, Motion No. M-62422


Synopsis


Defendant's motion to compel responses to discovery demands denied upon movant's failure to include affidavit alleging good faith efforts to resolve the issue prior to making the motion.

Case Information

UID:
2000-015-106
Claimant(s):
ANTONIO CARSON
Claimant short name:
CARSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102370
Motion number(s):
M-62422
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Antonio Carson, 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:
December 7, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion for an order pursuant to CPLR § § 3124, 3216 and 3134 compelling the claimant's response to a demand for a verified bill of particulars served upon him on June 9, 2000, or in the alternative, to preclude claimant from offering evidence at trial in support of matters demanded therein is denied. Defendant's attorney failed to include on this motion an "affidavit or affirmation in support, containing a representation that the parties have conferred with each other in a good faith effort to resolve the issues raised by the motion" as required by 22 NYCRR 206.8(b). Such failure mandates denial of the CPLR 3124 motion (see, Sixty-Six Crosby Assoc. v Berger & Kramer, 256 AD2d 26; Vasquez v G.A.P.L.W. Realty, 236 AD2d 311).

Relief pursuant to CPLR 3216 for want of prosecution is denied as inappropriate at this stage of the proceeding. Section 3134 of the CPLR cited by the defendant was repealed by chapter 98 of the Laws of 1993 effective January 1, 1994 and cannot form the basis of any motion.

The denial of this motion is without prejudice to a properly supported motion pursuant to CPLR 3124.

December 7, 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 September 15, 2000;
  1. Affirmation of Joel L. Marmelstein dated September 15, 2000 with exhibit.