New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2004-015-390, Claim No. 105855, Motion No. M-67864


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:
March 26, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for an order granting summary judgment dismissing the instant claim pursuant to CPLR § § 3126 (3) and 3212 (b) for claimant's failure to comply with a prior order of this Court dated June 10, 2003 and filed on June 17, 2003 is granted. The claim seeks to recover $1,000,000.00 in damages for injuries to claimant's right eye allegedly sustained on April 4, 2001 while using a Skil-Saw under the direction of correction officers at Eastern Correctional Facility in Napanoch, New York. Claimant also asserts a cause of action for alleged injury resulting from the denial of prescribed medication.

The defendant previously moved for an order compelling claimant to furnish a verified bill of particulars pursuant to CPLR Rule 3042 (c) and to furnish responses to outstanding discovery demands pursuant to Rule 3124. Claimant did not oppose that motion and it was, accordingly, granted. In the decision and order dated June 10, 2003 the Court indicated that should the claimant fail to serve a verified bill of particulars or responses to the defendant's discovery demands within the time provided therefor he would be precluded from offering evidence at trial related to items addressed in the demands.

Defense counsel has alleged on the instant motion that claimant wholly failed to comply with the Court's order and, therefore, seeks either dismissal of the claim pursuant to CPLR 3126 (3) or summary judgment pursuant to CPLR Rule 3212.

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 claimant failed to serve a bill of particulars and written responses to defendant's discovery demands as directed in the Court's order and has not opposed the instant motion by offering a reasonable excuse for having failed to do so, the Court can only conclude that the claimant's failure to disclose constitutes willful and contumacious conduct on his part and accordingly grants the defendant's motion (see, Reed v Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630). The claim is dismissed.

March 26, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 7, 2004;
  2. Affirmation of Belinda A. Wagner dated January 7, 2004.