New York State Court of Claims

New York State Court of Claims

JACOBS v. THE STATE OF NEW YORK, #2003-005-500, Claim No. 103755, Motion No. M-66131


Claimant's motion for relief pursuant to CPLR 3126, for the Defendant's failure, inter alia, to comply with certain disclosure demands and prior court orders, is granted to the extent that the answer is stricken.

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:
Alonzo Jacobs,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michael O'Neill, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On January 15, 2003, the following papers, numbered 1 to 6, were read on motion by Claimant for relief pursuant to CPLR 3126:

1, 2, 3 Notice of Motion, Motion and Affidavit in Support
  1. Opposing Papers
4, 5, 6 Filed Papers: Claim, Answer, Order in Motion No. M-64602

Upon the foregoing papers, this motion is granted to the extent noted.

Claimant makes this motion for what he terms the Defendant's "default of compliance with judgment", seeking to hold the Defendant in contempt. Claimant complains of the Defendant's deliberate and willful refusal and/or willful failure to comply and its defiance of this court's order of judgment (sic) dated September 24, 2002, which required compliance with directives which I imposed, relating specifically to certain discovery demands made by Claimant.

The aforementioned order in Motion No. M- 64602, dated September 24, 2002, was filed on October 10, 2002, and required Defendant to serve responses to specified discovery demands by November 1, 2002. The history of Claimant's attempts to obtain disclosure, including extensive motion practice, and the Defendant's tardy and totally unsatisfactory responses (when there were responses at all), is painfully reiterated in that order. I will not repeat the litany of the Defendant's continued disregard of demands, notices, court orders, etc., but will refer any appellate court reviewing this order to my earlier order in Motion No. M-64602, a copy of which is attached hereto and made a part hereof. That order speaks for itself, but it was unmistakably clear about the consequences for the Defendant's noncompliance with that order, to wit, "If Claimant is forced to bring yet another motion to obtain these materials, I would look favorably on a new motion to consider the imposition of sanctions."

That foreboding did nothing to inspire the Defendant's compliance. Claimant was forced to bring this motion, serving it on December 5, 2002, seeking what could be characterized as a default judgment (see CPLR 3126[3]), but in reality seeking any appropriate available remedies under CPLR 3126. This motion was filed on December 11, 2002 and was returnable on January 15, 2003. One might have thought that the additional period of time, between service of this motion and its return date more than one month later, provided yet another golden opportunity for Defendant to properly comply. The Defendant did nothing. Indeed it was only on the very return date of this motion that the Defendant made another belated request for additional time to comply, with the empty promise of yet another future intention to comply. Frankly, the Defendant has little if any credibility before this Court as these unfulfilled assurances have been made before.

This continuing pattern of noncompliance cannot be countenanced. First, I am aware that copies of certain, but not all, of Claimant's ambulatory health records were mailed to Claimant by Defendant's letter dated January 17, 2003, with the promise that additional materials and current ambulatory health records would be forthcoming at some vague and unspecific time in the future, to wit, whenever Defendant's counsel receives copies of the same.

The Fourth Department has held that "[w]hile ‘the harsh remedy of striking an answer should be granted only where it is conclusively shown that the discovery default was deliberate or contumacious' (citations omitted), ‘it is equally well settled that where a party disobeys a court order, and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within the broad discretion of the trial court' (citations omitted)" (Paull v First UNUM Life Ins. Co., 267 AD2d 970). "Willfulness may be inferred when a party repeatedly does not respond to demands for discovery, or to comply with discovery orders and is unable to proffer an adequate excuse for such defaults" (Weinstein-Korn-Miller, § 3126.10, p 31-610).

CPLR 3126 provides for sanctions ranging from granting a judgment by default, to striking a pleading or imposing a fine upon the litigant or the attorney, where the party refused to obey an order of disclosure or wilfully failed to disclose information. While the Defendant's actions are indefensible, a judgment by default is not an appropriate remedy as Court of Claims Act §12(1) provides in essence that no judgment shall be granted against the state without "such legal evidence as would establish liability against an individual or corporation in a court of law or equity."

Instead, the Defendant's answer is stricken. While the absence of an answer will deprive the State of the right to defend on the issue of liability, "[t]he result is that this claim must be tried, . . . and claimant will have to submit such evidence as will establish a prima facie case. At such trial, defendant shall be precluded from offering any evidence, testimonial or documentary, on the issue of liability, but it will be allowed to cross-examine claimant's witnesses. The conduct of defendant's case with respect to damages is unaffected by this decision" (Gibson v State of New York, O'Rourke, J., December 20, 2000, UID No. 2000-017-611, []).

Claimant of course is still entitled to receipt of those items specified in my prior orders, and the Defendant remains under a continuing duty to provide the same. Defendant is directed to provide written notice to the Court of the status of the outstanding demands, with copies of such correspondence sent contemporaneously to the Claimant. I will expect written correspondence from the Defendant dated by the first day of every month, starting on March 1, 2003, describing the status of such outstanding demands, until such time as full compliance has been accomplished.

The motion is granted to the extent that the answer is stricken.

January 30, 2003
Rochester, New York

Judge of the Court of Claims