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.
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.
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
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