New York State Court of Claims

New York State Court of Claims

GRIFFITH v. THE STATE OF NEW YORK, #2002-015-269, Claim No. 102496, Motion No. M-64967


Wilful and contumacious conduct inferred from claimant's failure to comply with Court order directing responses to discovery demands; claim dismissed pursuant to CPLR 3126 (3).

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:
Dexter Griffith, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown III, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant previously moved for an order compelling a further response to the defendant's discovery demand pursuant to Civil Practice Law and Rules (CPLR) § 3101 (d) (1) regarding medical expert(s), if any, which claimant intended to offer at trial and a statement in reasonable detail of the subject matter of the testimony to be offered by such expert(s). That motion was granted by decision and order of this Court dated December 11, 2001 in which claimant was directed to serve a response to the demand upon the Attorney General's office by regular mail within 45 days of service upon him of a copy of this decision and order with notice of its filing. A copy of the response was also to be filed with the Clerk of the Court. Defendant's prior motion was denied in all other respects. The defendant now moves to dismiss the claim pursuant to CPLR § 3126 (3) on the grounds that claimant willfully failed to comply with the Court's December 11, 2001 order. Claimant has not opposed the instant motion.

This claim is alleged to have accrued on June 5, 1999 during claimant's incarceration at Franklin Correctional Facility and seeks damages arising in medical negligence /malpractice due to the alleged failure of DOCS' medical personnel to properly diagnose and/or treat claimant for what claimant describes as a ruptured ulcer and anemia. The claim was filed on May 19, 2000.

Issue was joined by the service of the defendant's answer on June 20, 2000. The answer was accompanied by a written demand for disclosure of information concerning claimant's medical expert(s) pursuant to CPLR § 3101 (d) (1). Claimant, proceeding in this claim on a pro se basis, neither responded to the expert demand nor moved to vacate the demand. Defendant moved to compel claimant to respond and such motion was granted.

Defense counsel alleges in his affirmation in support of the instant motion that claimant failed to comply with the Court's December 11, 2001 order and seeks dismissal on the grounds that such failure on claimant's part should be viewed as a willful refusal to comply.

It appears from the affidavit of service of Elaine Hirt sworn to on December 27, 2001 that claimant was served on that date with a copy of the Court's decision and order. Defense counsel asserts that claimant did not supply the required documents to the Attorney General as directed in the order and his failure to do so was not excused. Moreover, claimant by failing to oppose this motion has offered no explanation for his non-compliance with the Court's directive.

"The drastic remedy of dismissing a complaint pursuant to CPLR 3126 (3) for a plaintiff's failure to comply with court-ordered discovery should be granted only where the conduct is shown to be willful, contumacious, or in bad faith" (Wilson v West Hempstead Generals Football Club, 286 AD2d 438). It is now established, however, that where, as in this case, "a plaintiff disobeys a court order and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the . . . Court (see, Zletz v Wetanson, 67 NY2d 711; see also, Kihl v Pfeffer, 94 NY2d 118; Brady v County of Nassau, 234 AD2d 408)" (Wilson, supra at 438).

Since claimant neither provided the documentation as directed in the Court's order and at two separate telephone conferences nor offered a reasonable excuse for having failed to do so the Court infers willful and contumacious conduct on his part and accordingly grants the defendant's motion (see, Reed v Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630). The claim is dismissed.

June 26, 2002
Saratoga Springs, New York
Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 2, 2002;
  2. Affirmation of Frederick H. McGown, III dated April 2, 2002.