New York State Court of Claims

New York State Court of Claims

MOLLING v. THE STATE OF NEW YORK, #2001-013-014, Claim No. 92742, Motion No. M-63474


Defendant's motion for absolute order of preclusion for failure to respond to discovery demands is denied against pr se litigation, who is entitled to greater latitude in procedural matters than a party represented by counsel.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 30, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On June 20, 2001, the following papers were read on Defendant's motion for dismissal or preclusion:
1. Notice of Motion and Supporting Affirmation of Paul Volcy, Esq., with Annexed Exhibits

2. Filed Papers: Claim; Answer

This claim, which is based on allegations that Claimant was beaten and kicked by correction officers at Wende Correctional Facility and subsequently denied adequate medical treatment, was commenced by the filing and service of the claim in October 1995. In November 1995, along with its Answer, Defendant served a Demand for a Verified Bill of Particulars, a Notice for Discovery and Inspection, and a Demand for Collateral Source (Volcy Affirmation, Exhibit B). At the time the action was commenced, Claimant was represented by counsel, but in an order dated June 17, 1997, former Court of Claims Judge (now Supreme Court Justice) John P. Lane granted the law firm's motion to withdraw, and the claim was transferred to the Court's inmate pro se calendar (id., Exhibit C). In a subsequent communication to the Office of the Attorney General, Claimant's former counsel stated that the file was forwarded to Claimant in October 1998 and that the law firm had had no further communication with him (id., Exhibit G).

Trial of this action was originally scheduled to be held on May 30, 2001, and the parties were directed to complete all discovery on or before February 28, 2001. Defense counsel wrote to Claimant on February 15, 2001, requesting responses to the November 1995 discovery demands and reminding Claimant of the discovery deadline (id., Exhibit F). Claimant replied in a letter that he had never received copies of the discovery demands, and on the basis of that response, defense counsel sent additional copies of the demands to Claimant and requested and received an adjournment of the trial date (id., Exhibit H). By my letter granting the adjournment, the parties were directed to complete all discovery by April 30, 2001, and the trial was rescheduled for November 9, 2001.

This motion has been brought because Claimant has failed to serve any response to Defendant's discovery demands, and Defendant is clearly entitled to an order of preclusion for that reason. Defendant requests, however, on the authority of Kihl v Pfeffer (256 AD2d 555, affd 94 NY2d 118), that the order be one of absolute preclusion, which would result in the claim itself being stricken and consequently dismissed.

Fashioning a remedy for a party's failure to serve responses to legitimate discovery demands lies within the discretion of the Court, and the traditional sanction is either a conditional or absolute order of preclusion (CPLR 3216). Absent a showing that the party who failed to respond to the demands was acting willfully and deliberately, it is almost always the case that the order of preclusion is conditional (Lones v Lampeas, 270 AD2d 317; Crowley v Montefiore Hosp. and Medical Center, 128 AD2d 443, 444). Departures from this norm are closely questioned by appellate courts and often held to be an abuse of discretion on the part of the trial court (see, Scott v Lawyers Co-op Pub. Co, 101 AD2d 1026; Hoven v Hoven, 91 AD2d 805; Barone v Gangi, 34 AD2d 889).

Kihl v Pfeffer (256 AD2d 555, affd 94 NY2d 118, supra), which is relied upon by Defendant, does not provide authority for me to issue an absolute order of preclusion in this instance. In that action, both parties were represented and they had appeared before the court; the discovery deadlines that the plaintiff failed to meet were contained in an extensive preliminary conference order; and – most significantly – the court had earlier issued a conditional order of preclusion. It would be particularly inappropriate for me to absolutely preclude the Claimant in this action, because pro se litigants are entitled, in procedural matters, to even greater latitude than that afforded parties who are represented by counsel (Sloninski v Weston, 232 AD2d 913, lv denied 89 NY2d 809; Moore v County of Rensselaer, 156 AD2d 784).

Defendant's motion is granted to the extent that Claimant is directed to provide written responses to Defendant's discovery demands within 45 days of the date on which this decision and order is file-stamped.

July 30, 2001
Rochester, New York

Judge of the Court of Claims