New York State Court of Claims

New York State Court of Claims

CARSON v. THE STATE OF NEW YORK, #2001-015-181, Claim No. 102370, Motion No. M-63659


Court denied defendant's motion to dismiss the claim pursuant to CPLR 3126 (3) in the absence of proof of wilful and contumacious conduct. Neglect to advise Court and Attorney General of new address following release from prison will not support dismissal. Plaintiff is precluded from offering evidence of items named in defendant's demand for a bill of particulars.

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:
Antonio Carson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 24, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion pursuant to CPLR § 3126 (3) to dismiss the claim on the ground that claimant has failed to comply with a prior order of this Court directing him to serve a verified bill of particulars within 30 days of service of a copy of the Court's decision and order is denied. The Court's decision and order dated April 27, 2001 and filed May 1, 2001 specifically provided that "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." It further provided that "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." In his affirmation in support of the instant motion defendant's counsel alleges service of the Court's April 27, 2001 decision and order by regular mail to claimant's last known address at Franklin Correctional Facility (FCF), Malone, New York. An affidavit of service attached to counsel's affirmation indicates that the decision and order was in fact served on claimant at FCF by regular mail on May 9, 2001. Counsel further avers that the mailing was returned to his office on May 21, 2001 and has attached a photocopy of the envelope indicating such return. Notice of the instant motion was likewise sent to claimant at FCF which remains his last known address.

This Court's April 27, 2001 decision and order provided that claimant's failure to respond to the defendant's demand for a bill of particulars within 30 days of service of a copy of the Court's decision and order with notice of entry would result in the preclusion of any evidence at trial relative to items contained in the defendant's demand and would form the basis for a motion seeking dismissal of the claim.

Defendant's counsel has satisfactorily demonstrated that the defendant served this Court's prior decision and order upon the claimant by depositing a copy in an envelope bearing sufficient postage and addressed to claimant at his last known address. It is well established that service made pursuant to CPLR Rule 2103 was complete upon mailing with appropriate postage to claimant at Franklin Correctional Facility, his last known address, regardless of whether or not the addressee actually received it (Grande v State of New York, 160 Misc 2d 383; Smith v Lefrak Organization, 96 AD2d 859, affd 60 NY2d 828; Barton v LaPointe, 67 AD2d 760). Adding five days to the court ordered 30 day period measured from its service on May 9,2001 as required by CPLR Rule 2103 (b)(2), the preclusion order took effect on June 13, 2001 and claimant is now precluded from offering evidence at trial relative to matters set forth in the defendant's demand.

The defendant, however, has not met its burden of establishing that claimant's failure or refusal to disclose was the result of willful or contumacious conduct (see, Forman v Jamesway Corp., 175 AD2d 514). It appears from the inmate data sheet attached to the motion papers as Exhibit B that the claimant was released from custody on April 13, 2001 upon the expiration of his maximum sentence. Defense counsel alleges that the claimant failed to inform the Attorney General of his new address and suggests that such failure constitutes the sort of wilful act justifying dismissal of the claim. The Court, however, finds no basis in the claimant's neglect to establish the type of deliberate failure to comply with Court ordered discovery contemplated by CPLR § 3126 (Seneca Foods Corp., Matter of v Jorling, 168 AD2d 967, 968). While the claim may be susceptible to a motion for summary judgment (Barriga v Sapo, 250 AD2d 795), without proof that the prior order was received and consciously disregarded the Court will exercise its discretion in favor of denying the defendant's motion to dismiss pursuant to CPLR § 3126 (Puccia v Farley, 261 AD2d 83, 84).

September 24, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 20, 1999 [sic];
  2. Affirmation of Joel L. Marmelstein dated June 20, 1999 [sic] with exhibits.