New York State Court of Claims

New York State Court of Claims

WAUL v. THE STATE OF NEW YORK, #2001-001-038, Claim No. 98836, Motion Nos. M-63331, M-63385


Synopsis


Claimant's motion for an order precluding defendant from offering proof at trial for its failure to respond to claimant's discovery demands and on claimant's motion to preclude defendant from offering proof at trial for its failure to supply a bill of particulars pursuant to CPLR 3042 (c) and (d) are denied.

Case Information

UID:
2001-001-038
Claimant(s):
ANDRE WAUL
Claimant short name:
WAUL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98836
Motion number(s):
M-63331, M-63385
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Andre Waul, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Elyse J. Angelico, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 29, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion for an order pursuant to CPLR 3126 precluding defendant from offering proof at trial for its failure to respond to claimant's discovery demands and on claimant's motion to preclude defendant from offering proof at trial for its failure to supply a bill of particulars pursuant to CPLR 3042 (c) and (d):[1] Notice of Motion (M-63331), dated April 1 and filed April 4, 2001; Affidavit of Andre Waul, pro se, sworn to April 1 and filed April 4, 2001, with annexed Exhibit 1; Affirmation in Opposition of Elyse J. Angelico, Esq., AAG, dated May 3 and filed May 7, 2001, with annexed Exhibit 1; Notice of Motion (M-63385), dated April 11 and filed April 16, 2001; Affidavit in Support of Andre Waul, pro se, sworn to April 11 and filed April 16, 2001, with annexed Exhibit [Demand for Verified Bill of Particulars]; Affirmation in Opposition of Elyse J. Angelico, Esq., AAG, dated May 3 and filed May 7, 2001, with annexed Exhibits A-B; and Reply to Defendant's Affirmation in Opposition, dated May 9 and filed May 17, 2001.[2]

Claimant Andre Waul ("claimant") filed this bailment action by permission of the Court (Court of Claims Act § 10 [6]) on August 21, 1998 (Waul v State of New York, Ct Cl unreported decision filed July 2, 1998, Ruderman, J., Motion No. M-57436; claim, undated and filed August 21, 1998). Motion No. M-63331 stems from discovery demands made by claimant pursuant to CPLR 3101 on February 16, 2001 which, as of the date claimant made the motion, defendant State of New York ("defendant" or "the State") had not answered (Affidavit of Andre Waul, pro se, sworn to April 1 and filed April 4, 2001 [M-63331], ¶¶ 4-6). The other motion seeking similar relief, Motion No. M-63385, arises out of claimant's demand for a bill of particulars, which had also remained unanswered as of the date claimant made the motion (Affidavit in Support of Andre Waul, pro se, sworn to April 11 and filed April 16, 2001 [M-63385]). In both instances, claimant seeks an order precluding defendant from offering evidence related to the unanswered demands. Defendant opposes the motions, arguing that since both the demand for a bill of particulars and claimant's discovery demands have now been answered, the motions are moot (Affirmation in Opposition of Elyse J. Angelico, Esq., AAG, dated May 3 and filed May 7, 2001 [M-63331], Exh. 1; Affirmation in Opposition of Elyse J. Angelico, Esq., AAG, dated May 3 and filed May 7, 2001 [M-63385], Exhs. A-B).

CPLR 3126 authorizes a court to penalize a party who refuses to obey an order directing disclosure or "wilfully fails to disclose information which the court finds ought to have been disclosed." Among the penalties that the court may impose are an order resolving in favor of the moving party issues to which the information is relevant; an order precluding the disobedient party from producing evidence or the things or items of testimony being sought; an order striking the disobedient party's pleadings, in whole or in part; an order staying further proceedings until the demanded information is provided; or an order dismissing the action. This list is not exhaustive, and monetary sanctions may also be awarded to sanction frivolous conduct (see, Klein v Seenauth, 180 Misc 2d 213). Because the "objective of CPLR article 31 is not punitive but, rather, the liberal and full disclosure" of all relevant information (id., at 217, citing Miller v Duffy, 126 AD2d 527, 528), any sanction imposed is to be fashioned as narrowly as possible under the circumstances of each individual case (see, Di Domenico v C & S Aeromatick Supplies, 252 AD2d 41). CPLR 3042 gives the Court the authority to impose similar sanctions against a party who willfully fails to provide a bill of particulars (see, Smith v State of New York, Ct Cl, Patti, J., UID # 2000-013-006).[3]

Upon review of the papers submitted on these motions, the Court does not find the requisite showing that defendant's conduct to date has risen to the level of being "willful" or "contumacious" so as to justify the drastic relief that claimant requests (see, Fitterer v Gus Riedlinger's Towing Serv., 271 AD2d 403, 404; Kovacs v Castle Restoration and Constr., 262 AD2d 165, 166; Remuneration Planning & Servs. Corp. v Berg & Brown, 151 AD2d 268, 269).

The Court notes, as mentioned above, that the State has now answered claimant's outstanding demands and, as a trial date has yet to be set for this claim, claimant has demonstrated no prejudice engendered by the delay.

Based on the foregoing, the Court denies claimant's motions.


June 29, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]In the alternative, claimant moved for an order pursuant to CPLR 3124 compelling disclosure (M-63331). As defendant has now complied with claimant's demands, this portion of claimant's motion is moot.
[2]The Court considered claimant's last submission despite its untimeliness.
[3]This and many other decisions of the Court of Claims can be found by following a link on its website at http://www.nyscourtofclaims.state.ny.us/decisions.