New York State Court of Claims

New York State Court of Claims

LINTON v. THE STATE OF NEW YORK, #2001-009-018, Claim No. 99241, Motion No. M-63050


Synopsis


Defendant's motion to dismiss the claim was granted based upon claimant's failure to respond to a conditional order of preclusion.

Case Information

UID:
2001-009-018
Claimant(s):
MICHAEL LINTON
Claimant short name:
LINTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99241
Motion number(s):
M-63050
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
CHEDA & SHEEHAN, ESQS.
BY: Thomas Sheehan, Esq.,Of Counsel.
Defendant's attorney:
LAW OFFICE OF WALTER R. PACER, JR.
BY: Michael R. Mendola, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
April 23, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

In a decision and order dated November 8, 2000 (see Motion No. M-62096), this Court granted a conditional order of preclusion, and directed that claimant serve upon defendant a verified bill of particulars, and responses to defendant's demand for discovery and production and its expert disclosure demand within 30 days of service of the order. In his moving papers, defendant's attorney has established that this conditional preclusion order was served upon claimant's attorney on or about November 14, 2000 (see Exhibit G). As set forth in the papers before the Court in this motion, claimant has failed to serve his bill of particulars or responses to the disclosure demands.

Furthermore, claimant has failed to provide medical authorizations as directed by a scheduling order of this Court dated June 6, 2000, and an amended scheduling order dated November 28, 2000.

Claimant has not submitted any papers in opposition to this motion, nor did claimant oppose defendant's prior motion in which the Court granted the conditional order of preclusion.

Therefore, the Court must grant defendant's motion to preclude, based upon claimant's failure to provide a verified bill of particulars or discovery responses as required by the conditional preclusion order. Furthermore, it is clear that claimant will not be able to prove a prima facie case with such evidence precluded, and therefore defendant's motion to dismiss the claim must also be granted.

Accordingly, it is

ORDERED, that Motion No. M-63050 is hereby GRANTED; and it is further

ORDERED, that Claim No. 99241 is hereby DISMISSED.


April 23, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims