New York State Court of Claims

New York State Court of Claims

LARRY v. THE STATE OF NEW YORK, #2002-011-518, Claim No. 104322, Motion No. M-64332


Synopsis


Claimant's motion to compel based on the alleged failure to provide a response is denied without prejudice to a new motion to compel based on the legitimacy of the objections raised in the response.

Case Information

UID:
2002-011-518
Claimant(s):
MARK LARRY, 87 T 1430
Claimant short name:
LARRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104322
Motion number(s):
M-64332
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Mark Larry, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 20, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant has moved for an order compelling defendant to provide a response to a demand for documents and interrogatories dated July 17, 2001.

In his affidavit in support of the motion claimant avers that no response to the demands has been provided though the time for doing so has passed. In opposition to the motion, defendant has provided a copy of a response to the demands and proof that the response was served on October 16, 2001. The response to the demands contains objections to three of the four demands. In his reply affirmation claimant states that a response was served but that it was served beyond the time required by the CPLR and that the objections raised are without merit.

Though it is clear from that reply affirmation that claimant takes exception to the objections set forth in defendant's response, he did not raise that issue in either the notice of motion or in his affidavit in support of the motion. Inasmuch as defendant did not have notice of the issues claimant has now raised and therefore, did not have an opportunity to be heard on those issues, it would be inappropriate to determine whether the objections are sound. Accordingly, the motion to compel based on the alleged failure to provide a response is denied without prejudice to a new motion to compel based on the legitimacy of the objections raised in the response dated October 16, 2001.


February 20, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion dated October 21, 2001
  2. Unsworn Affidavit in Support of Mark Larry undated with attachments
  3. Affirmation in Opposition of Michael W. Friedman, Esq. dated December 5, 2001 with exhibit annexed
  4. Unsworn Response to Defendant's Affirmation in Opposition of Mark Larry dated December 7, 2001 with exhibits annexed