New York State Court of Claims

New York State Court of Claims

PARKINSON v. THE STATE OF NEW YORK, #2000-015-109, Claim No. 101281, Motion No. M-62433


Pro se inmate's claim for personal injuries dismissed for failure to comply with Court's conditional order of preclusion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
David Parkinson, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 12, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment dismissing the claim upon claimant's failure to comply with this Court's conditional order of preclusion dated May 9, 2000 is granted. This is a claim by an inmate appearing pro se to recover for personal injuries upon various theories of recovery including negligence, medical malpractice and unjust confinement as a result of events which occurred at Marcy Correctional Facility during August and September of 1999. The claim was filed on October 21, 1999 and defendant's demand for a verified bill of particulars was served on November 15, 1999. Despite a subsequent written request from defense counsel, claimant failed to serve the demanded bill of particulars. Defendant then moved in this Court for an order pursuant to CPLR 3042 precluding claimant from offering proof at trial with respect to matters of which particulars were demanded. This Court, by decision and order dated May 9, 2000, granted the order of preclusion unless claimant served a bill of particulars within 90 days of service upon him of a copy of the decision and order with notice of entry. Despite the opportunity provided by the Court, claimant never served the bill of particulars.

On this motion the defendant submitted proof that a copy of this Court's May 9, 2000 decision and order along with notice of its entry was served upon the claimant on June 7, 2000. Pursuant to its terms, claimant had until September 5, 2000 to serve his responses. Defendant alleges that no bill was served within the allotted time and this motion ensued. Defendant submitted proof of timely service of the instant motion papers upon claimant, but claimant has failed to oppose the motion.

It is well settled that a trial court is provided broad discretion to determine motions to dismiss a claim or cause of action for failure to serve a bill of particulars ( Sabatello v Frescatore, 200 AD2d 939). By decision and order of this Court the claimant was provided ample opportunity to respond to the defendant's demand for a bill of particulars or be precluded from offering proof relative to matters upon which particulars were sought. Claimant failed to avail himself of the opportunity provided and thus is now precluded from offering proof at trial to support his claim (DiPietro v Duhl, 227 AD2d 515). In order to now defeat the defendant's motion for summary judgment it was incumbent upon the claimant to demonstrate that his failure to comply with the prior conditional order of preclusion should be excused (Bassett v Powers, 126 AD2d 867). Not only has claimant failed to demonstrate a reasonable excuse for his default, he has failed to oppose the instant motion despite proof of its service upon him. Under such circumstances and in light of the inability of the claimant to submit proof necessary to establish his claim, the defendant's motion for summary judgment dismissing the claim is granted (Taylor v Prudential Prop. & Cas. Ins. Co., 97 AD2d 660).

December 12, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion to dismiss claim dated September 13, 2000;
  2. Affirmation of Joel L. Marmelstein dated September 13, 2000, with exhibits.