New York State Court of Claims

New York State Court of Claims

PRESSLEY v. THE STATE OF NEW YORK, #2002-015-243, Claim No. 102641, Motion No. M-64511


Synopsis


Court dismissed claim on State's summary judgment motion based on claimant's failure to comply with prior conditional order of Court requiring service of a bill of particulars and responses to discovery demands.

Case Information

UID:
2002-015-243
Claimant(s):
KEVIN PRESSLEY
Claimant short name:
PRESSLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102641
Motion number(s):
M-64511
Cross-motion number(s):

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

Signature date:
April 25, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The State's motion for summary judgment seeking an order dismissing the claim due to claimant's failure to comply with the Court's prior orders compelling service of a bill of particulars and responses to discovery demands is granted. The instant claim seeks to recover the sum of $60,000.00 as compensation for personal injuries sustained as a result of an alleged battery of claimant by DOCS personnel at the Oneida Correctional Facility draft room on March 31, 2000.

Claimant failed to serve and file a bill of particulars and responses to outstanding discovery demands served upon him on July 19, 2000 prompting two prior motions addressed in decisions and orders dated April 23, 2001 (filed April 26, 2001) and October 1, 2001 (filed October 11, 2001). The latter decision and order provided that if claimant failed to serve a bill of particulars and responses to defendant's discovery demands within 45 days of service upon him of a copy of the decision and order he would be precluded from offering evidence at trial related to the items demanded therein. The decision and order further provided that should claimant fail to timely serve the required documents defendant could then move for summary judgment seeking dismissal of the claim. The defendant now moves for such relief and claimant has not opposed the motion.

The instant motion is supported by the affirmation of Assistant Attorney General G. Lawrence Dillon dated December 14, 2001, a copy of the Court's decision and order dated October 1, 2001, and an affidavit alleging service of the notice of entry along with a copy of the October 1, 2001 decision and order on October 22, 2001. It is further supported by a copy of claimant's undated and unverified bill of particulars stamped "Received November 26, 2001" and a copy of defense counsel's letter dated November 26, 2001 rejecting claimant's unverified bill of particulars and providing notice pursuant to Rule 3022 of the CPLR of the defendant's intention to treat the unverified bill as a nullity and advising claimant of his continuing default.

The instant motion is based upon claimant's failure to supply a proper bill of particulars or to provide any responses whatsoever to the defendant's discovery demands despite this Court's conditional order to do so within forty-five days of service of a copy of the October 1, 2001 decision and order.

There is no doubt that the Court's decision and order required claimant to provide both discovery responses and a bill of particulars and that his failure to serve either would support a motion to dismiss the claim. Since claimant has not opposed the instant motion the allegations of defense counsel regarding the lack of service of discovery responses stand unrefuted on the record entitling the defendant to dismissal of the claim for claimant's failure to comply with the Court's conditional order.

Additionally, however, the defendant has alleged and the claimant has not refuted that although claimant attempted to provide a bill of particulars defense counsel elected to treat the unverified bill as a nullity pursuant to Rule 3022 of the CPLR and provided both notice of the State's intention to do so and the reasons therefor to the claimant with due diligence.

With regard to due diligence the Court notes that claimant's purported bill was date stamped "Received November 26, 2001" (Exhibit B) and defense counsel's letter to claimant citing the Rule 3022 election bears the same date. It thus appears to the Court that the defendant met the due diligence aspect of CPLR 3022 (see, Miller, Matter of, v Board of Assessors, 91 NY2d 82; Salahuddin, Matter of, v LeFevre, 137 AD2d 937).

It is also clear that verification of the bill of particulars was required here. Section 3044 of the CPLR requires verification of a bill of particulars if the pleading to which it refers must be verified. Court of Claims Act § 11 (b) clearly mandates verification of a claim (see, Martin v State of New York, 185 Misc 2d 799) and, accordingly, any bill of particulars designed to amplify a claim in this Court by setting forth in greater detail the nature of the allegations the party intends to prove (Northway Eng'g Inc. v Felix Indus., 77 NY2d 332) must be verified pursuant to section 3044. Since claimant's bill received by the defendant on November 26, 2001 lacks a verification the defendant could and did elect to treat it as a nullity pursuant to Rule 3022 of the CPLR. Once such election was made and conveyed to claimant with due diligence his attempt to comply with at least that part of the Court's conditional order of October 1, 2001 failed. Since he never served a corrected, verified bill after receiving defense counsel's letter of November 26, 2001 he must be found to have defaulted on his obligation to serve a proper bill.

Under these circumstances the Court's conditional order of preclusion became absolute precluding the claimant from proving his case (see Di Pietro v Duhl, 227 AD2d 515) and establishing the defendant's right to dismissal of the claim on a motion for summary judgment (Barriga v Sapo, 250 AD2d 795; Di Pietro v Duhl, supra).

Accordingly, defendant's motion is granted and the claim is dismissed.


April 25, 2002
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 December 14, 2001;
  2. Affirmation in support of motion dated December 14, 2001 with exhibits.