New York State Court of Claims

New York State Court of Claims

MOJICA v. THE STATE OF NEW YORK, #2002-015-244, Claim No. 102294, Motion No. M-64510


Summary judgment awarded dismissing inmate claim seeking to recover for personal injuries sustained as a result of medical negligence/malpractice of DOCS medical personnel due to claimant's failure to comply with Court's conditional order directing service and filing of a belated bill of particulars.

Case Information

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:
Miguel Mojica, 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 19, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The State's motion for summary judgment seeking an order dismissing the claim upon the claimant's inability to prove a prima facie case as a result of his failure to comply with the Court's previously issued conditional order of preclusion is granted. The instant claim was filed on April 14, 2000 and seeks to recover damages for personal injuries allegedly sustained on December 22, 1999 as a result of the negligence and/or medical malpractice of a registered nurse employed at the Oneida Correctional Facility in Rome, New York.

On June 9, 2000 the defendant served upon the claimant a demand for a verified bill of particulars and a separate omnibus discovery demand. Claimant failed to respond to either demand and by decision and order dated April 23, 2001 this Court addressed the issue of claimant's failure to serve a bill of particulars by compelling service of a bill of particulars within 30 days of receipt of that decision and order.

Claimant failed to serve a bill of particulars as directed in the Court's prior order despite proof that claimant was served with a copy of the Court's decision and order on May 2, 2001. The defendant subsequently moved to compel responses to the outstanding omnibus discovery demands and to preclude the claimant at trial from offering evidence pertaining to the items contained in the unanswered demand for a bill of particulars. In a decision and order dated October 3, 2001 the Court conditionally granted the relief requested by providing claimant a final opportunity to avoid preclusion by service of the bill and discovery responses within 45 days of service upon him of a copy of the decision and order with notice of entry. The decision and order further specified, however, that preclusion would result from claimant's failure to serve the bill of particulars and discovery responses as directed therein without the necessity of a further motion. Claimant served neither a bill of particulars nor responses to the omnibus discovery demand within the time allotted in the Court's October 3, 2001 order and this motion ensued.

The defendant seeks dismissal of the claim on the grounds that claimant is precluded as a matter of law from offering evidence necessary to the establishment of a prima facie case. In support of the motion defense counsel offers, inter alia, an affirmation in support, a copy of the notice of entry of the decision and order dated October 22, 2001 and an affidavit of service demonstrating service of the notice and decision and order on October 22, 2001. Defense counsel alleges that neither a bill of particulars nor responses to the omnibus discovery demand were served.

Claimant's failure to serve a bill of particulars or responses to the omnibus discovery demand within the time allotted in the Court's conditional order dated October 3, 2001 now precludes him from offering at trial evidence necessary to establish a prima facie case. As a result the defendant's motion for summary judgment is granted and the claim is dismissed (see, Nicoletti v Ozram Transp. 286 AD2d 719; Barriga v Sapo, 250 AD2d 795).

April 19, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 14, 2001;
  2. Affirmation of G. Lawrence Dillon dated December 14, 2001 with exhibits.