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).