New York State Court of Claims

New York State Court of Claims

DELONY v. THE STATE OF NEW YORK, #2002-015-304, Claim No. 105806, Motion Nos. M-65564, CM-65667


Court granted State's motion to compel proper responses to outstanding discovery demands which must be served within 45 days of service of this decision. Claimant's cross-motion for order directing supervised disclosure of non-existent discovery demands is denied.

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:
Gerold Delony, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 15, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to compel responses to the State's discovery demands and to compel service of a verified bill of particulars is granted. Claimant's cross-motion for a protective order and for an order directing judicially supervised disclosure is denied. The claim filed March 27, 2002 seeks to recover money damages for personal injuries allegedly sustained by the claimant when he slipped and fell while exiting a State transport vehicle at Mohawk Correctional Facility on February 1, 2002.

The Assistant Attorney General assigned to this matter alleges in his affirmation in support of the defendant's motion that a demand for a verified bill of particulars and omnibus discovery demands were served upon the claimant on April 23, 2002 and were returned without responses on May 10, 2002. Following the unexplained return of the demands the Attorney General served the demands again under cover letter of May 16, 2002 (Exhibit D). Claimant's failure to respond to the discovery demands prompted the instant motion.

In his affidavit in support of the cross-motion, claimant acknowledged the May 10, 2002 return of the demands offering mental illness as his excuse for having returned the papers without proper responses. Claimant's affidavit also seeks to include responses to certain of the matters inquired of in the defendant's demands. Claimant's efforts in this regard are, however, unsatisfactory.

First, the purported bill of particulars set forth in paragraphs 4 (a-d) of claimant's affidavit is not verified as required by CPLR § 3044 (see, Court of Claims Act § 11 [b]). Moreover, claimant's attempt to respond to the demands by casual reference to items addressed in his claim rather than giving specific answers to the various items contained in the demand for the verified bill fails to meet the statutory requirements applicable to a bill of particulars (CPLR §§ 3042, 3043).

Claimant's responses to the defendant's discovery demands set forth in paragraphs 5-7 of claimant's affidavit in support of the cross-motion are likewise deemed to be unsatisfactory. The purpose of pre-trial discovery is "to advance the function of the trial to ascertain truth and to accelerate the disposition of suits" (Rios v Donovan, 21 AD2d 409, 411; Siegel, NY Prac § 343 at 489 [2d ed]). That purpose is served by the free exchange of information in response to appropriate demands. Claimant is obligated to provide a truthful response to each appropriate demand and to move for a protective order if any of the demands are alleged to be objectionable. Accordingly, the defendant's motion to compel proper responses to defendant's omnibus discovery demands is granted.

Claimant's responses to the demand for a verified bill of particulars and to the defendant's other discovery demands shall be served upon defense counsel within 45 days of service of this decision and order with notice of its entry. Claimant's failure to comply with this directive will result in him being precluded from offering evidence at trial regarding any and all items upon which responses have not been provided without the necessity of an additional motion to preclude such evidence.

Claimant's cross-motion for a protective order is denied as is claimant's cross-motion for an order directing supervised disclosure. It has been said that judicial supervision of disclosure "should be exercised sparingly and its exercise is not warranted in the absence of special circumstances" (DiGiovanni v Pepsico, Inc., 120 AD2d 413). Claimant failed to establish that he ever served the State with discovery demands in this action or that the State has refused to respond to any such demands. Absent proof that claimant has unsuccessfully pursued discovery through ordinary means his request for judicial supervision of discovery is improper (Smith v State of New York, Ct Cl, August 8, 2001 [Claim No. 103396, Motion No. M-63731] Sise, J., unreported; Williams v State of New York, Ct Cl, September 6, 2002 [Claim No. 106218, Motion Nos. M-65548, M-65549] Lebous, J., unreported).

November 15, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court has considered the following papers:
  1. Notice of motion dated July 15, 2002;
  2. Affirmation of Joel Marmelstein dated July 15, 2002 with exhibits;
  3. Notice of cross-motion dated August 13, 2002;
  4. Affidavit of Gerold Delony sworn to August 13, 2002 with exhibit;
  5. Affirmation of Joel L. Marmelstein dated September 3, 2002.