New York State Court of Claims

New York State Court of Claims

ALDUEY v. STATE OF NEW YORK, #2003-018-240, Claim No. 101683, Motion No. M-66927


Synopsis


Defendant's motion for summary judgment is granted as a result of claimant's failure to respond to defendant's discovery demands.

Case Information

UID:
2003-018-240
Claimant(s):
CARLOS ALDUEY
Claimant short name:
ALDUEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101683
Motion number(s):
M-66927
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CARLOS ALDUEYPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 22, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Defendant brings a motion for summary judgment. No response was received from the


claimant.

The claim arises from an incident which occurred on June 29, 1999, when claimant tripped on the step in the shower area at Cape Vincent Correctional Facility, Dormitory F2, and fell sustaining injuries to his forehead and a finger on his left hand. Claimant asserts that the medical employees at the correctional facility failed to properly care for his injuries and timely arrange for an x-ray to be taken. It is alleged that claimant's finger was broken which was not discovered until weeks later.

Defendant served discovery demands upon the claimant on July 19, 2000, which included a First Set of Interrogatories, Demand for Information Regarding Expert Witness, Demand for Medical Records and Authorizations, Demand for Statements, Photographs, Videotapes and Names and Addresses of Witnesses. Defendant established service of the demands. Claimant failed to respond. As a result of claimant's failure to answer the demands, defendant brought a motion seeking an order of preclusion. This Court granted the motion by decision and order filed on April 1, 2003 (Motion No. M-66174), giving claimant 30 days from the date a copy of the order with Notice of Entry was served upon him to reply to defendant's demand. Defendant served a copy of the Court's Decision and Order upon the claimant on April 8, 2003 (Motion Papers, Exhibit E). The 30 days have passed and claimant has again failed to respond to the defendant's discovery demands, nor has claimant provided any explanation by a response to this motion.

Claimant is thus precluded from offering any evidence or testimony at trial regarding the information demanded by defendant's discovery demands. As a result claimant cannot, as a matter of law, establish the defendant's liability. Defendant's motion is GRANTED, and the claim is hereby DISMISSED.

July 22, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion..........................................................................................1


Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto......................................2