New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2003-015-327, Claim No. 105855, Motion No. M-66504


Court granted State's motion to compel claimant to furnish verified bill of particulars and responses to omnibus demands within 45 days of service upon him of the decision and order.

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:
Jose Martinez, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for an order requiring the claimant to furnish a verified bill of particulars pursuant to Rule 3042 (c) and to compel claimant to respond pursuant to Rule 3124 to defendant's omnibus discovery demands is granted. The claim filed on April 4, 2002 by a former inmate appearing pro se seeks to recover $1,000,000 in damages for injuries to his right eye allegedly sustained by claimant on April 4, 2001 while using a Skil-saw under the direction of correction officers at Eastern Correctional Facility in Napanoch, New York; and for related injuries resulting from a denial of access to prescribed medication.

On September 11, 2002 the defendant served upon claimant a demand for a verified bill of particulars and a separate omnibus demand for, inter alia, names and addresses of witnesses, disclosure of expert witness information, discovery and inspection of photographs, medical authorizations, employment and wage authorization and collateral source information. Upon claimant's failure to respond to the demands in a timely fashion defense counsel wrote a letter to claimant requesting responses to the outstanding demands by January 20, 2003. It is alleged on the motion that claimant failed to respond to the letter request and has neither objected nor responded to the said demands. Claimant has not opposed the motion.

Where a party fails to respond to a demand for a bill of particulars the party serving the demand may move to compel a response pursuant to CPLR 3042 (c). Similarly a response to a demand for disclosure under Article 31 may be compelled through a motion made pursuant to CPLR 3124. The defendant has submitted proof establishing that a demand for a bill of particulars and an omnibus discovery demand were served upon the claimant and that despite a subsequent attempt to secure compliance the claimant has failed to respond to either such demand. As a result, claimant

is hereby ordered to serve upon the defendant a verified bill of particulars and written responses to defendant's discovery demands within 45 days of service upon him of this decision and order with notice of its filing. In the event claimant fails to serve the required documents within the prescribed period he shall be precluded from offering any evidence at trial related to items set forth in either of the separate demands and no further motion shall be required.

That part of the defendant's motion to dismiss the claim pursuant to CPLR 3126 (3) is denied since defendant has not satisfactorily shown that claimant's failure to respond to either demand was the result of willful or contumacious conduct (see, Forman v Jamesway Corp., 175 AD2d 514). However, if claimant fails to serve a verified bill of particulars or fails to serve responses to the defendant's omnibus discovery demands as required herein and is thereby precluded from offering evidence at trial essential to his case, the defendant, even in the absence of proof of willful or contumacious conduct on claimant's part, may move for summary judgment dismissing the claim (see, Barriga v Sapo, 250 AD2d 795). Claimant's compliance with the directions contained in this decision and order will obviate the need for any such motion.

June 10, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 5, 2003;
  2. Affirmation of Belinda A. Wagner dated March 5, 2003 with exhibits