New York State Court of Claims

New York State Court of Claims

DUBOIS v. THE STATE OF NEW YORK, # 2002-028-047, Claim No. 105607, Motion Nos. M-65184, CM-65271


Synopsis


Claimant's application for an Order to Compel responses is denied and Defendant's request for a protective order is granted.

Case Information

UID:
2002-028-047
Claimant(s):
DONALD DUBOIS
Claimant short name:
DUBOIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105607
Motion number(s):
M-65184
Cross-motion number(s):
CM-65271
Judge:
RICHARD E. SISE
Claimant's attorney:
DONALD DUBOIS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michele M. Walls, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 29, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion to compel a response to his Demand for a Bill of Particulars and Defendant's cross-motion for a protective order pursuant to CPLR 3103:

1) Notice of Motion and Supporting Affidavit of Donald DuBois filed May 13, 2002 (DuBois Affidavit);

2) Notice of Cross-Motion and Affirmation in Support of the Cross-Motion and in Opposition of Assistant Attorney General Michele M. Walls, filed May 28, 2002, with annexed Exhibits A-D (Walls Affirmation).


Filed Papers: Claim, filed February 14, 2002, Answer filed March 14, 2002.

The underlying Claim alleges Claimant, at all times relevant an inmate in the care and custody of the Department of Correctional Services (DOCS), was wrongfully confined in the Special Housing Unit from August 7, 2001 through November 6, 2001.

On or about April 19, 2002 Claimant served the "Demand For Bill of Particulars" (Walls Affirmation, Exhibit C) which is the subject of the instant motions. By letter dated April 25, 2002 the Defendant objected to the demands "as improper" and indicated it would not be responding (Walls Affirmation, Exhibit D).

A bill of particulars, is a limited device, designed simply to amplify or supplement a pleading, (Northway Engineering, Inc. v Felix Industries, Inc., 77 NY2d 332, 335) and "relates to the burden of proof and requires each party upon demand to provide particulars with respect to matters alleged in that party's pleading" (Id., at 336). There is the general rule that a party's failure to timely move against a demand for bill of particulars (see, CPLR 3042 [a]) forecloses further inquiry into the merits of the demand (see, e.g., Ryan v Beavers, 170 AD2d 1045). However, that general rule does not apply where the demand is "palpably improper" (see, Nigro v Nigro, 121 AD2d 833). Examples of demands that are palpably improper are demands seeking material which is evidentiary in nature, irrelevant to Claimant's claim or privileged or those which are unduly burdensome or relate to matters of law (see, State of New York v General Electric Company, 173 AD2d 939 [citations omitted]).

Although the Court has some question whether Defendant's objection meets the "reasonable particularity" requirement of CPLR 3042(a), upon review of the at issue demands, all the demands are palpably improper. For example, demands designated "C" through "H", seek the production of, inter alia, library texts (i.e., Title 7 of the New York Code of Rules and Regulations) and other evidentiary material. Moreover, the material sought relating to the Misbehavior Report and Determination, appear to be appended to the Claim as exhibits.[1]

As to the dates of Claimant's confinement (Demands "A" and "B") those are matters within Claimant's knowledge and more importantly, not part of defendant's burden of proof in this wrongful confinement claim (Northway Engineering, Inc. v Felix Industries, Inc., 77 NY2d 332, supra; see also, Waul v State of New York, Ct Cl, Collins, J., July 25, 2001, Claim No. 102787 UID No. 2001-015-165 [information within Claimant's knowledge or possession not proper]).

Accordingly, Claimant's motion to compel is denied and Defendant's cross-motion for a protective order is granted.

August 29, 2002
Albany, New York
HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Claimant would be well advised to consult Article 31 of the CPLR for devices appropriate to the production of documents and authentication of same.