New York State Court of Claims

New York State Court of Claims

VAUGHAN v. THE STATE OF NEW YORK, #2004-009-49, Claim No. 108957, Motion No. M-68306


Claimant's motion seeking sanctions against defendant's attorney was denied.

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:
Defendant's attorney:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 7, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking a ruling from the Court as to the sufficiency of the verification attached to his Bill of Particulars. Additionally, claimant seeks monetary sanctions against the Assistant Attorney General handling this claim on behalf of the State pursuant to CPLR § 3126, for allegedly frivolous conduct with regard to discovery.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support (with Memorandum of Law), Affidavit of Vincent Malerba 1,2,3

Defendant's Response, with Exhibits 4

Claimant's Reply 5

In this claim, claimant seeks damages in the sum of $43.24 alleging the loss of certain items of personal property while claimant was incarcerated at Marcy Correctional Facility. On or about March 25, 2004, defendant served, with its Answer, a Demand for a Verified Bill of Particulars. Claimant served his response to this Demand on or about April 5, 2004. Defendant's attorney rejected this response, and returned it to claimant on or about April 5, 2004, on the grounds that it was improperly verified.

Claimant then instituted the instant motion. As set forth in defendant's response papers, claimant also provided to defendant a properly verified Bill of Particulars with the motion papers which were served upon defendant.

In this motion, claimant seeks a determination from this Court as to the sufficiency of the statement (in lieu of a verification) submitted with his original Bill of Particulars, as well as an order assessing monetary sanctions against defendant's attorney. Claimant contends that the actions of the Assistant Attorney General in rejecting his original Bill of Particulars constitutes a frivolous conduct. Claimant also alleges that the Assistant Attorney General tampered with the original Bill of Particulars prior to rejecting and returning the document to claimant.

Defendant acknowledges, however, that the Bill of Particulars served upon the defendant with this motion contained a proper verification, and that such Bill of Particulars was timely served. Claimant's request for a determination as to the adequacy of his sworn statement attached to his original Bill of Particulars has therefore been rendered moot.

With regard to claimant's request for monetary sanctions, CPLR 3126 authorizes a court to penalize a party who refuses to obey an order directing disclosure or "wilfully fails to disclose information which the court finds ought to have been disclosed." Among the penalties that the court may impose are an order resolving in favor of the moving party issues to which the information is relevant; an order precluding the disobedient party from producing evidence or the things or items of testimony being sought; an order striking the disobedient party's pleadings, in whole or in part; an order staying further proceedings until the demanded information is provided; or an order dismissing the action. This list is not exhaustive and monetary sanctions may also be awarded to sanction frivolous conduct (see Klein v Seenauth, 180 Misc 2d 213). Because "the overriding objective of CPLR article 31 is not punitive but, rather, the liberal and full disclosure" of all relevant information (id., 217, citing Miller v Duffy, 126 AD2d 527, 528), any sanction imposed is to be fashioned as narrowly as possible under the circumstances of each individual case (see DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41).

In this matter, defendant's attorney asserts that since the original Bill of Particulars received by him from claimant did not contain a proper verification, his only available remedy was to return those papers to the claimant (see Lepkowski v State of New York, 1 NY3d 201).

Although defendant's attorney, at his option, could have accepted the Bill of Particulars as originally served, the Court does not find that his conduct in rejecting that Bill of Particulars has risen to the level of being willful or contumacious so as to justify the drastic relief of sanctions available under CPLR 3126. (See Fitterer v Riedlinger's Towing Serv., 271 AD2d 403, 404; Kovacs v Castle Restoration and Constr., 262 AD2d 165, 166; Remuneration Planning & Servs. Corp. v Berg & Brown, Inc., 151 AD2d 268, 269).

Furthermore, even though claimant contends that defendant tampered with the original Bill of Particulars prior to rejecting it (by removing staples, presumably in order to photocopy the Bill of Particulars), there is insufficient evidence before the Court which would enable it to make such a finding. Even if a copy was made, the Court finds that claimant would not have been prejudiced in the prosecution of his claim.

Accordingly, based on the foregoing, it is

ORDERED, that Motion No. M-68306 is hereby DENIED.

September 7, 2004
Syracuse, New York

Judge of the Court of Claims