New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2003-015-349, Claim No. 103770, Motion No. M-67050


Synopsis


Court granted the State's unopposed motion to dismiss the claim based upon claimant's failure to comply with Court directed discovery.

Case Information

UID:
2003-015-349
Claimant(s):
CESAR MARTINEZ and VICTORIA MARTINEZ
Claimant short name:
MARTINEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103770
Motion number(s):
M-67050
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Cesar Martinez and Victoria Martinez, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 4, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion for an order dismissing the instant claim pursuant to CPLR § 3126 (3) for claimants' failure to comply with a prior order of this Court dated February 28, 2003 and filed on March 12, 2003 is granted. The claim seeks to recover $750,000 in damages for personal injuries allegedly sustained by claimant Cesar Martinez on December 13, 2000 when he tripped and fell on a metal post located on a walkway between the New York State Department of Motor Vehicles and the New York State Department of Transportation buildings in Albany, New York. The claim of Victoria Martinez is derivative.

This Court held a telephone conference on February 27, 2003 with one of the pro se claimants (Cesar Martinez) and Assistant Attorney General Glenn King. Subsequent to the conference the Court issued an order which, inter alia, directed claimants to serve their discovery demands upon the defendant on or before March 29, 2003; to serve their responses to the State's outstanding demands on or before April 28, 2003; and to file a note of issue on or before June 1, 2003. Court records demonstrate that the order was served upon the claimants by ordinary mail at the address provided by Cesar Martinez during the February 27, 2003 teleconference. Defense counsel has alleged on the motion that claimants have wholly failed to comply with the Court's order and has requested that the claim be dismissed on that basis.

It is now established that where a claimant "disobeys a court order and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the [Supreme] Court (see, Zletz v Wetanson, 67 NY2d 711; see also, Kihl v Pfeffer, 94 NY2d 118; Brady v County of Nassau, 234 AD2d 408)" (Wilson v West Hempstead Generals Football Club, 286 AD2d 438).

Since claimants neither provided the documentation as directed in the Court's order nor opposed this motion by offering a reasonable excuse for having failed to do so the Court infers willful and contumacious conduct on their part and accordingly grants the defendant's motion (see, Reed v Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630). The claim is dismissed.


September 4, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated July 1, 2003;
  2. Affirmation of Glenn C. King dated July 1, 2003.