New York State Court of Claims

New York State Court of Claims

ROWE v. STATE OF NEW YORK, #2004-018-294, Claim No. 105038, Motion No. M-67780


Synopsis


Case Information

UID:
2004-018-294
Claimant(s):
WILLIAM ROWE
Claimant short name:
ROWE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105038
Motion number(s):
M-67780
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
WILLIAM ROWEPro 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:
May 17, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion for preclusion and summary judgment. No response was

received from the claimant.

The claim seeks damages for injuries claimant suffered while an inmate at Cape Vincent Correctional Facility. While playing handball, a fellow inmate playing paddleball on an adjoining court, lost control of his paddle which struck claimant in the head. Claimant alleges that the State was negligent in allowing handball and paddleball to be played on adjoining courts, and allowing paddles to be used without being attached to the players by straps. Claimant also seems to assert a claim for the defendant's failure to provide proper medical care and diagnosis for the injuries claimant sustained.

Defendant served a demand for medical records and authorizations, a demand for statements, photographs, videotapes, and names and addresses of witnesses, also a demand for expert witness disclosure, and a demand for a verified bill of particulars on November 16, 2001. 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 May 2, 2003, granting defendant a conditional order of preclusion, and giving claimant 30 days from date of service of a copy of the Decision and Order with Notice of Entry upon claimant to produce the information. In the event claimant failed to provide the requested information, he would be precluded from offering any evidence or testimony at trial relating to the information demanded. Defendant served claimant with a copy of the Decision and Order with Notice of Entry on May 13, 2003. Thirty days have long since expired and claimant has failed to provide any responses to defendant's demands, nor has he responded to this motion.

Claimant is thus precluded from offering any evidence or testimony at trial regarding the information demanded in defendant's demands. As a result, claimant will be unable to establish a prima facie case of the defendant's negligence or medical malpractice (see Hare v Newman, 309 AD2d 1265; Rasmussen v Niagara Mohawk Power Corporation, 294 AD2d 862, 863).

Accordingly, defendant's motion is GRANTED, and the claim is hereby DISMISSED.


May 17, 2004
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,

with exhibit attached thereto.....................................................................2


No response was received from claimant.