New York State Court of Claims

New York State Court of Claims

MONTALVO v. STATE OF NEW YORK, #2000-018-036, Claim No. 100993, Motion No. M-61819


Synopsis


Court granted 60-day Order of Preclusion pursuant to Defendant's motion based upon CPLR §§3124 and 3126.

Case Information

UID:
2000-018-036
Claimant(s):
RICKY MONTALVO
Claimant short name:
MONTALVO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100993
Motion number(s):
M-61819
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MICHAEL B. MILLER, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
BY: JOEL L. MARMELSTEIN, ESQUIRE
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 18, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant brings a motion to compel and/or preclude pursuant to CPLR 3124, 3126 and


3134. The Court has considered the following submissions:


Notice of Motion...........................................................................1


Affirmation of Joel L. Marmelstein, Esquire,

Assistant Attorney General with all exhibits attached thereto..2


Affirmation of Joel L. Marmelstein, Esquire,

Assistant Attorney General pursuant to Uniform Rules

for the Court of Claims §206.8(b)...........................................3


Facsimile correspondence from Michael B. Miller, Esquire

to Joel L. Marmelstein, Esquire, Assistant Attorney

General, dated July 28, 2000, with Amended Bill of

Particulars, Responses to Discovery Demands........................4


Letter from Joel L. Marmelstein, Esquire, Assistant

Attorney General dated August 2, 2000, to Michael

B. Miller, Esquire.....................................................................5




The claim seeks damages for injuries sustained while claimant was acting as an inmate basketball coach at the Marcy Correctional Facility. Defendant served a Demand for a Verified Bill of Particulars and Discovery Demand originally upon the claimant pro se. However, once claimant retained counsel, defendant advised that the responses claimant had drafted pro se were insufficient. A preliminary conference was held and pursuant to the Order of the Court, claimant was required to respond to the demands and provide an Amended Bill of Particulars by May 15, 2000. At the time this motion was filed, June 1, 2000, claimant's counsel had not responded.

In the interim, claimant's counsel has provided substantially all of the discovery responses and an Amended Bill of Particulars. However, defendant's counsel believes some additional information is still necessary.

Accordingly, this Court will GRANT a conditional Order of Preclusion. Claimant has sixty (60) days from the date of service upon claimant of a copy of this Order with notice of entry to serve upon defendant's counsel any remaining discovery responses or documents, including any additional responses to the Amended Verified Bill of Particulars, or claimant will be precluded from offering any evidence or testimony at trial regarding the information which was demanded but not provided.


August 18, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims