New York State Court of Claims

New York State Court of Claims

PRESSLEY v. THE STATE OF NEW YORK, #2001-015-189, Claim No. 102641, Motion No. M-63739


Synopsis


Conditional order of preclusion granted against pro se claimant unless bill of particulars is served and filed within 45 days of service of a copy of this decision/order. Claimant also directed to serve and file responses to defendant's omnibus discovery demands within 45 days.

Case Information

UID:
2001-015-189
Claimant(s):
KEVIN PRESSLEY
Claimant short name:
PRESSLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102641
Motion number(s):
M-63739
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Kevin Pressley
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 1, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The motion has two separate components. The first requests an order pursuant to CPLR § 3126 (2) precluding the claimant from offering evidence at trial with regard to items contained in the defendant's demand for a bill of particulars which was the subject of a prior decision and order of this Court dated April 23, 2001 and filed April 26, 2001. That relief is granted unless the claimant serves and files a verified bill of particulars within 45 days of service upon him of a copy of this decision and order with notice of its filing. Secondly, the motion requests an order pursuant to CPLR 3124[1] compelling the claimant to respond to the defendant's omnibus discovery demands dated July 19, 2000. That portion of the motion is likewise granted and claimant is directed to serve and file responses to said omnibus discovery demands within 45 days of service upon him of a copy of this decision and order with notice of entry. His failure to serve and file responses to said omnibus discovery demands within the time specified in this decision and order will result in claimant being precluded from offering evidence at trial related to the items contained therein. No additional motion to preclude such evidence is required. This pro se inmate's claim seeks to recover the sum of $60,000.00 as compensation for an alleged battery[2] by DOCS' personnel at the Oneida Correctional Facility draft room on March 31, 2000.

As noted above this Court addressed the defendant's outstanding demand for a bill of particulars, in its April 23, 2001 decision and order which compelled the claimant to serve a bill of particulars within 30 days of receipt of that decision and order. Defense counsel alleges on the instant motion that a copy of the Court's prior decision and order was served upon the claimant by regular mail on May 7, 2001 and an affidavit of service is attached to the motion papers. Counsel further alleges that claimant has not served a verified bill of particulars pursuant to the Court's decision and order and on that basis moves to preclude claimant from offering evidence at trial relating to the items contained in the defendant's demand. The defendant requests an order dismissing the claim in the event that claimant fails to comply with the Court's order compelling responses. Claimant did not oppose the motion.

Defendant's counsel has satisfactorily demonstrated that claimant was served by regular mail on May 7, 2001 with a copy of the Court's decision and order filed April 26, 2001 compelling the claimant to serve a bill of particulars within 30 days of its receipt. Claimant's failure to serve a bill of particulars by the date of the instant motion (July 9, 2001) justifies the issuance of an order precluding the claimant from offering evidence at trial related to the items contained in the defendant's demand for a bill of particulars. The Court, however, is inclined to allow the pro se claimant a final opportunity to comply with the Court's direction to serve a verified bill of particulars. Accordingly the defendant's motion to preclude the claimant from offering evidence at trial with regard to items contained in the defendant's demand for a bill particulars is granted unless a verified bill of particulars is served within 45 days of service of a copy of this decision and order with notice of its filing.

Defendant's counsel has also alleged on the motion that claimant has likewise failed to respond to the defendant's omnibus discovery demands initially served on June 6, 2000. The Court's prior decision and order dated April 23, 2001 did not specifically address those discovery demands, as differentiated from defendant's demand for a bill of particulars, except to provide that the denial of the defendant's motion in regard to such discovery demands was without prejudice to the making of a motion to compel responses pursuant to CPLR 3124. The instant motion in part now seeks such relief regarding the outstanding omnibus discovery demands. Once again, the Court notes that claimant has not opposed the motion.

CPLR 3124 clearly provides that a party seeking disclosure may move to compel compliance or a response where a person has failed to respond to discovery demands such as those made by the defendant. The claimant neither provided responses to the demands nor opposed this motion to compel such responses. Claimant is, therefore, ordered to provide written responses to the defendant's discovery demands which were served on him on June 6, 2000 within 45 days of service of this decision and order with notice of its filing. In the event that claimant fails to serve the required responses within the period provided he shall be precluded from offering any evidence at trial related to the items set forth in said demands. No additional motion seeking an order of preclusion related to such discovery demands need be made.

The Court, however, declines to dismiss the claim pursuant to CPLR § 3126 (3) since the defendant has not shown that claimant's failure to serve the Court ordered bill of particulars was the result of willful or contumacious conduct on his part (see, Forman v Jamesway Corp., 175 AD2d 514). Dismissal of the claim based upon claimant's failure to serve responses to the omnibus discovery demands which this Court compels for the first time in this decision and order must be denied as both premature and unsupported.

If claimant fails to serve a verified bill of particulars or fails to serve responses to the defendant's discovery demands as provided in this decision and is thereby precluded from offering evidence at trial essential to his case the defendant, even in the absence of proof of willful or contumacious conduct on claimant's part, may move for summary judgment dismissing the claim (see, Barriga v Sapo, 250 AD2d 795). Claimant's compliance with the directions contained in this decision and order will obviate the need for any such motion.


October 1, 2001
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice motion dated July 9, 2001;
  2. Affirmation of G. Lawrence Dillon dated July 9, 2001 with exhibits.

[1]The instant notice of motion erroneously refers to CPLR § 3024 but defense counsel's affirmation in support of the motion correctly cites to CPLR 3124 in reference to relief regarding the defendant's omnibus discovery demands.
[2]Defendant's counsel erroneously alleges that the claim seeks recovery for damages stemming from medical malpractice (see paragraph 2 of counsel's affirmation).