1. Notice of Motion and Supporting Affirmation of Paul Volcy, Esq., with
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.