New York State Court of Claims

New York State Court of Claims

GARBUTT v. NEW YORK STATE OFFICE OF CHILDREN & FAMILY SERVICES, #2001-016-031, Claim No. None, Motion No. M-62985


Motion for pre-action disclosure under CPLR 3102(c) was denied.

Case Information

MARVA GARBUTT, Mother and Natural Guardian of RASHID GARBUTT, a Minor
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):

Alan C. Marin
Claimant's attorney:
Barasch, McGarry, Salzman Penson & LimBy: Michael Barasch, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
May 7, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is a motion for pre-action disclosure pursuant to CPLR 3102(c). It is asserted that on October 5, 2000, Rashid Garbutt, a minor, was being driven home from Mt. Sinai Hospital by his probation officer. The officer allegedly hit a pothole causing the air bag to explode and injure Garbutt; it is asserted that he suffered a detached retina which required surgery, as well as post-concussion syndrome. Sought in this motion are: 1) the incident report pertaining to the accident; 2) the name, address and telephone number of the insurer of the vehicle along with the policy number; and 3) "the full and complete youth record maintained" on Garbutt. Claimant served a notice of intention on defendant on December 11, 2000. See ¶3 of the March 8, 2001 affirmation of Susan J. Pogoda. This was timely under §10.3 of the Court of Claims Act (the "Act") and the time for Garbutt to file and serve his claim will thus expire on December 11, 2002.[1]

CPLR 3102(c) provides in relevant part that "[b]efore an action is commenced, disclosure to aid in bringing an action . . . [or] to preserve information . . . may be obtained, but only by court order." Claimant seeks the insurance information "so as to ascertain who is responsible for the payment of the medical expenses incurred" and the youth record "in order to preserve the material and necessary information contained therein." See p. 1 of the January 18, 2001 affirmation of Michael Barasch.

"Pre-action discovery may be appropriate to preserve evidence or to identify potential defendants. . . " Holzman v Manhattan and Bronx Surface Transit Operating Authority, 271 AD2d 346, 347, 707 NYS2d 159, 160 (1st Dept 2000). See also Edens v State of New York, 259 AD2d 729, 730, 687 NYS2d 423, 425 (2d Dept 1999). In the instant case, §11 of the Act provides that a claim must state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. The information requested in this motion does not go to the requisites of §11.

Finally, with respect to "preserving" Garbutt's youth record, claimant has provided no explanation as to why this is necessary. For instance, it has not been asserted that there has been a threat to destroy such record or that such records are regularly discarded. Moreover, claimant has failed to explain how the entire youth record would be needed in connection with this motor vehicle accident claim.

For the foregoing reasons, having reviewed the parties' submissions,[2] IT IS ORDERED that motion no. M-62985 is denied.

May 7, 2001
New York, New York

Judge of the Court of Claims

  1. [1]Neither of the parties has submitted a copy of the notice of intention, so aside from the issue of timeliness, it is not possible to determine whether the notice of intention was otherwise in compliance with §§10 and 11 of the Act.
  2. [2]The following were reviewed: claimant's notice of motion with affirmation in support and Exhibits A and B; and defendant's affirmation in opposition.