New York State Court of Claims

New York State Court of Claims

CARSON v. THE STATE OF NEW YORK, #2001-015-148, Claim No. 102370, Motion No. M-63083


Synopsis


Court treated State's motion brought pursuant to CPLR Rule 3124 but seeking an order compelling service of a bill of particulars as a motion pursuant to Rule 3042(c). Claimant directed to serve bill of particulars within 30 days of service of decision and order with notice of entry.

Case Information

UID:
2001-015-148
Claimant(s):
ANTONIO CARSON
Claimant short name:
CARSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102370
Motion number(s):
M-63083
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Antonio Carson, 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 27, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant's motion for an order pursuant to Rule 3124 directing claimant to serve a verified bill of particulars in response to the defendant's demand therefor dated June 9, 2000 within thirty days of the service upon claimant of a copy of this decision and order with notice of entry is converted by the Court to a motion pursuant to CPLR Rule 3042 (c) and upon such conversion is granted. The claim filed April 27, 2000 seeks to recover money damages for personal injuries allegedly sustained by claimant as a result of a denial of medical treatment for an injury to claimant's left hand which purportedly occurred in the recreation area (gym) of Marcy Correctional Facility on or about February 2, 2000.

Section 2001 of the CPLR provides:
At any stage of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.
Although the defendant's motion is labeled as one brought pursuant to CPLR Rule 3124, it is immediately apparent from the motion papers themselves that the motion seeks an order compelling the claimant to serve a response to defendant's demand for a verified bill of particulars as provided in Rule 3042 (c). Claimant's failure to oppose the motion coupled with the obvious lack of prejudice resulting from the requested order, which merely compels the claimant to provide a response to the defendant's demand, prompts this Court to disregard the citing defect contained in the notice of motion.

Claimant is directed to serve a verified bill of particulars in response to the defendant's June 9, 2000 demand within 30 days of service upon him of a copy of this decision and order with notice of entry. In the event claimant fails to serve a bill of particulars within the allotted time he shall be precluded at trial from offering any evidence relative to the items contained within the defendant's demand; and upon further motion the instant claim may be dismissed pursuant to CPLR § 3126.


April 27, 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 February 9, 2001;
  2. Affirmation of Joel L. Marmelstein dated February 8, 2001 with exhibits.