New York State Court of Claims

New York State Court of Claims

MOJICA v. THE STATE OF NEW YORK, #2001-015-190, Claim No. 102294, Motion No. M-63753


Synopsis


Conditional order of preclusion granted unless pro se claimant serves and files a bill of particulars within 45 days of this decision/order. Claimant directed to serve responses to defendant's outstanding omnibus discovery demands within 45 days. If responses not served claimant will be precluded from offering related evidence.

Case Information

UID:
2001-015-190
Claimant(s):
MIGUEL MOJICA
Claimant short name:
MOJICA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102294
Motion number(s):
M-63753
Cross-motion number(s):

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

Signature date:
October 3, 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 compelling the claimant to respond to the defendant's omnibus discovery demands dated June 9, 2000[1]. 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 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 damages for personal injuries allegedly occurring on December 22, 1999 and resulting from the medical malpractice and negligence of a registered nurse employed at Oneida Correctional Facility. The claim was filed on April 14, 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 and therein 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 with notice of entry was served upon the claimant by regular mail on May 2, 2001 and an affidavit of service is attached to the motion papers. Counsel further alleges that claimant has not complied with 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 2, 2001 with a copy of the Court's decision and order 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 of 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.

Defense counsel also alleges that claimant has likewise failed to respond to the defendant's omnibus discovery demands dated June 9, 2000. The Court's prior decision and order dated April 23, 2001 did not specifically address those discovery demands, except to provide that the denial of the defendant's motion was without prejudice to the making of a motion to compel responses to such demands pursuant to CPLR 3124. The instant motion now seeks that relief.

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 dated June 9, 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 on the motion 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 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, Barrigan 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 3, 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 July 9, 2001;
  2. Affirmation of G. Lawrence Dillon dated July 9, 2001 with exhibits.

[1]Defendant's counsel erroneously stated that such discovery demands were served on June 6, 2000 (see paragraph 3 of counsel's affirmation).