New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2001-015-141, Claim No. 100631, Motion No. M-62967


Synopsis


Inmate's claim for $69.75 as reasonable value of personal property allegedly lost by DOCS personnel dismissed for claimant's failure to comply with court order service of a bill of particulars.

Case Information

UID:
2001-015-141
Claimant(s):
JACK JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100631
Motion number(s):
M-62967
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Jack Jones, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 23, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim pursuant to CPLR Rule 3042 (d) and § 3126 on the ground that the claimant has failed to comply with this Court's order filed on October 11, 2000 compelling claimant to respond to defendant's demand for a bill of particulars dated November 10, 1999 within 30 days of service of a copy of the Court's decision and order is granted. The defendant's request for alternative relief precluding the claimant from offering evidence at trial on any and all matters which are the subject of the defendant's demand for a verified bill of particulars is denied as academic. This is a claim by an inmate appearing pro se to recover the sum of $69.75 as the reasonable value of a military blanket which was allegedly missing from claimant's personal property upon his release from a special housing unit.

In support of this motion the defendant's attorney submitted an affidavit alleging that despite service of the Court's decision and order filed October 11, 2000 upon the claimant by regular mail on October 24, 2000 at his last known address at the Queensboro Correctional Facility, claimant has not served a response to the defendant's demand for a bill of particulars. Counsel notes in his affidavit that such service upon the claimant was not returned. Counsel also provided an affidavit of service of the instant motion to which claimant likewise has not responded.

In the Court's view, the failure of the claimant to comply with the prior order of this Court together with his failure to oppose the motion establishes wilful and contumacious conduct sufficient to warrant the dismissal of the claim (Kihl v Pfeffer, 94 NY2d 118, Martin v Brooks, 270 AD2d 538).


April 23, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 11, 2001;
  2. Affirmation of Joel L. Marmelstein dated January 11, 2001 with exhibits