New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2002-009-38, Claim No. 99934, Motion No. M-65087


Defendant's motion for a final order of preclusion, based upon the failure of claimants to comply with a scheduling order and to defendant's discovery demands, was granted and the claims were dismissed.

Case Information

NICHOLAS THOMAS, an Infant, by his Parents LANA and RICHARD THOMAS
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:
BY: Mary E. Leonard, Esq., Of Counsel.
Defendant's attorney:
Attorney General
BY: Gordon J. Cuffy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order of preclusion, as well as an order of dismissal for the above claims.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

These claims were both filed with the Clerk of the Court on March 5, 1999, and seek damages arising from the same incident. In Claim No. 99934, it is alleged that representatives of the New York State Police and the Tompkins County Department of Social Services used improper tactics to take Nicholas Thomas, an infant, into custody. In Claim No. 99935, Lana Thomas alleges that in addition, these representatives also used improper tactics to secure her arrest.

On June 1, 2000, a conference was called by the Court to inquire as to the status of these claims. After discussions with counsel at this conference, claimants were directed to serve and file a note if issue and certificate of readiness for each claim by September 26, 2000. A note of issue and certificate of readiness was served and filed for Claim No. 99934 on that date. No note of issue and certificate of readiness, however, was filed for Claim No. 99935.

Another conference was then scheduled by the Court for the purpose of scheduling a trial for Claim No. 99934, as well as to determine why a note of issue and certificate of readiness had not been served and filed for Claim No. 99935. At this conference, which was held on April 9, 2001, a trial date was scheduled for July 16, 2001, based upon the representations in the note of issue and certificate of readiness that Claim No. 99934 was ready for trial. Claimants were also directed to serve and file a note of issue and certificate of readiness for Claim No. 99935, so that both claims could be tried together.

Subsequent to this conference, and after claimants had served and filed their note of issue and certificate of readiness for Claim No. 99935, defendant brought a motion to strike the notes of issue in each claim, on the basis that discovery was incomplete. This motion, which was unopposed by claimants, was granted by the Court.[1] In its order, the Court directed that claimants were to provide their bill of particulars and responses to the outstanding discovery demands of the defendant by August 15, 2001.

When it appeared to the Court that claimants had not complied with these provisions of its order, this Court scheduled another conference for November 28, 2001. However, there was no appearance at this conference by claimants' attorney. The Court then advised claimants' attorney, in writing, that any outstanding discovery should be completed prior to a rescheduling of this conference.

At the next conference and calendar call held on April 2, 2002, defendant's attorney advised the Court that there had been no compliance with the prior scheduling order, and that he had received no responses to the State's demand for a bill of particulars and the various discovery demands.

This motion for preclusion and dismissal ensued, and the Court notes that claimants have not submitted any response to the motion, nor has there been any contact whatsoever with the Court regarding this motion or these claims. According to the records of this Court, and the information available to the Court, claimants have not responded to the demand for a bill of particulars or the outstanding discovery demands.

It is evident to this Court that claimants, through their attorney, have abandoned these claims. Claimants have been given ample time to advance these claims through the discovery stage, but they have failed to make any effort whatsoever to comply with what the Court considers to be routine discovery demands. Furthermore, claimants, through their attorney, have been given numerous opportunities to explain their failure to comply with the Court's scheduling order, and to cure their default, and have failed to do so.

Therefore, the Court must grant the defendant's motion to preclude. It is also clear to this Court that claimants will not be able to prove a prima facie case with such evidence precluded, and therefore defendant's request to dismiss these claims must also be granted.

Accordingly, it is

ORDERED, that defendant's motion for preclusion is GRANTED, and claimants are precluded from offering any evidence at trial that is directly related to and requested within defendant's demand for a bill of particulars and defendant's disclosure demands; and it is further

ORDERED, that Claim No. 99934 and Claim No. 99935 are both hereby DISMISSED.

August 28, 2002
Syracuse, New York

Judge of the Court of Claims

[1] See Decision and Order to Motion No. M-63551, dated July 5, 2001.