New York State Court of Claims

New York State Court of Claims

HOLMES v. THE STATE OF NEW YORK, #2001-001-039, Claim No. 103570, Motion No. M-63424


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):

Susan Phillips Read
Claimant's attorney:
Darrow Holmes, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Carol A. Cocchiola, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 29, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's motion for an order compelling disclosure pursuant to CPLR 3124 and an order assessing penalties against defendant for its failure to comply with claimant's discovery demands pursuant to CPLR 3126: Notice of Motion, dated April 12 and filed April 27, 2001; Affidavit in Support of Motion of Darrow Holmes, pro se, sworn to April 12 and filed April 27, 2001, with annexed Exhibits A-E; Affirmation of Carol A. Cocchiola, Esq., AAG, dated May 16 and filed May 18, 2001; the claim, undated and filed December 22, 2000; Claimant's Demand for Discovery, dated February 5 and filed February 20, 2001; Defendant's Response to Claimant's Demand for Discovery, dated May 16 and filed May 18, 2001.

Claimant Darrow Holmes ("claimant") filed a claim, pro se, on December 22, 2000 alleging, among other things, that Division of Parole ["the Division"] employees assaulted him while he was in the process of being charged for a parole violation (claim, undated and filed December 22, 2000 ["claim"], ¶ 1). He also alleges that his arrest and subsequent imprisonment was the result of malicious prosecution by the Division based on its bias and prejudice towards him due to his lifestyle (claim, ¶¶ 2-5).

Claimant states that on February 5, 2001 he made a demand for discovery and documents upon defendant State of New York ("defendant" or "the State") allowing 30 days for the State to respond (Affidavit in Support of Motion of Darrow Holmes, pro se, sworn to April 12 and filed April 27, 2001, with annexed Exhibits A-E ["Holmes Aff."], ¶ 2, Exh. A).[1] Having received no response, claimant sent two letters to defendant reminding it that the 30-day period to respond to his CPLR 3120 demands had expired and that he would move for relief under CPLR 3124 (Holmes Aff., ¶¶ 3-4). Defendant responded by letter dated March 22, 2001, notifying claimant that his claim had been reassigned and that it would be requesting the necessary documentation to respond to his demands. The letter also noted that since part of claimant's demands were for copies of his own medical records and complaints he had made to the Broome County District Attorney, claimant could request this information directly from his medical providers and the District Attorney (Holmes Aff., Exh. D; Affirmation of Carol A. Cocchiola, Esq., AAG, dated May 16 and filed May 18, 2001 ["Cocchiola Aff."], ¶¶ 5-7).

On April 27, 2001, claimant filed this motion to compel disclosure and penalties (CPLR 3124, 3126). The State's response to claimant's demands was served upon claimant on May 16 and filed May 18, 2001.

As the State has now responded to claimant's CPLR 3120 demands, the portion of his motion seeking to compel disclosure pursuant to CPLR 3124 is moot. What remains is the portion of the motion seeking penalties against the State for its delayed response to his discovery demand.[2]

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 overriding 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, DiDomenico v C & S Aeromatick Supplies, 252 AD2d 41).

Upon review of the papers submitted on this motion, 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 more drastic relief available under CPLR 3126 (see, Fitterer v 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, Inc., 151 AD2d 268, 269). The Court notes, however, that it is only after claimant filed the instant motion to compel discovery on April 27, 2001 that the State responded to his demands - - one week before the motion's return date. Although the State explains that the claim was reassigned to a different Assistant Attorney General ("AAG") in March 2001 (Cocchiola Aff., ¶ 5), the letter from the newly assigned AAG to claimant, dated March 22, 2001, indicates that as of that date the State had yet even to request the necessary documentation in order to respond to claimant's requests (Holmes Aff., Exh. D). While the Court can discern no prejudice engendered by the delay at this early stage of litigation, by all appearances the unexplained delay did cause claimant to incur unnecessary copying and mailing expenses in filing this motion. Accordingly, the Court exercises her discretion under CPLR 3126 and assesses a $20.00 penalty against the State, payable to claimant to defray his motion costs (see, O'Brien v Occidental Chem. Corp., 266 AD2d 915; Kleinberg Elec. v City of New York, 255 AD2d 248).

June 29, 2001
Albany, New York

Judge of the Court of Claims

[1]Claimant mistakenly refers to this submission as a Bill of Particulars in the text of his affidavit.
[2]Claimant's untimely response to the State's motion papers requests some form of sanction for the delay under CPLR 3126 (Affirmation of Darrow Holmes, dated May 20 and filed May 25, 2001).