New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2003-009-16, Claim No. 105370, Motion No. M-66544


Synopsis


Defendant's motion for a final order of preclusion and dismissal of the claim was granted.

Case Information

UID:
2003-009-16
Claimant(s):
TOM SMITH a/k/a VANCE SUBER
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105370
Motion number(s):
M-66544
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
TOM SMITH a/k/a VANCE SUBER, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 28, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion for preclusion and summary judgment dismissing the claim under CPLR Rule 3212.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affirmation, with Exhibits 1,2

In an Order filed February 10, 2003 (see Motion No. M-65906), this Court granted a Conditional Order of Preclusion, and directed that claimant serve upon the defendant his bill of particulars and responses to defendant's discovery demands within 30 days of service of the Order. As set forth in defendant's Affirmation in support of this motion (Item No. 2), the Conditional Preclusion Order was served upon claimant on or about February 13, 2003.

As set forth in the papers before the Court, claimant has failed to serve his bill of particulars and responses to the discovery demands upon the Attorney General.

The Court also notes that not only did claimant fail to submit any papers in opposition to the motion for a Conditional Order of Preclusion, claimant has also failed to submit any papers in opposition to this motion.

Therefore, the Court must grant defendant's motion to preclude. Furthermore, it is clear that claimant will not be able to prove a prima facie case with such evidence precluded, and therefore defendant's request to dismiss the claim must also be granted.

Accordingly, it is

ORDERED, that defendant's motion for preclusion is GRANTED, and claimant is precluded from offering any evidence at trial that is directly related to and requested within defendant's demand for bill of particulars and defendant's discovery demands; and it is further

ORDERED, that Claim No. 105370 is hereby DISMISSED.


April 28, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims