New York State Court of Claims

New York State Court of Claims

POE v. STATE OF NEW YORK, #2004-018-313, Claim No. 108694, Motion No. M-68634


Defendant's motion to compel Claimant to respond to discovery demands and demand for bill of particulars, motion to strike claim from July 29, 2004 calendar, and request to amend Answer pursuant to CPLR 3205 are granted.

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:
David Allen PoePro Se
Defendant's attorney:
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings this motion for an Order compelling the claimant to respond to

discovery demands and a demand for a verified bill of particulars; for an order striking the claim from the Court's prison term trial calendar, scheduled for July 29, 2004; and seeking an order pursuant to CPLR 3025(b) allowing Defendant to amend its answer to include a statute of limitations defense.
Request to Compel Discovery
Claimant filed a claim on December 29, 2003, seeking damages for an assault by a correction officer on February 23, 2004. Defendant filed an answer on February 23, 2004. Defendant served a copy of its answer with discovery demands and a demand for a verified bill of particulars upon Claimant on February 23, 2004, and filed copies of the documents with the Clerk of the Court of Claims.

Claimant did not respond to the discovery demands and did not provide a verified bill of particulars. The Assistant Attorney General asserts that he forwarded a letter to Claimant on May 5, 2004, requesting that responses be provided. On May 13, 2004, Claimant wrote to the Assistant Attorney General indicating that he never received the discovery demands. Defendant then forwarded another copy of the demands to Claimant on May 19, 2004. On June 9, 2004, Claimant forwarded some response to the demands, but failed to answer all inquiries.

Defendant argues that it needs the names of witnesses and the name of the correction officer that allegedly assaulted Claimant in order to adequately defend the claim.

It appears to the Court that Defendant's requests are reasonable and responses should be provided. Accordingly, Claimant is directed to provide responses to the Defendant's demand for a verified bill of particulars and discovery demands dated February 20, 2004 within 45 days of the date on which this Decision and Order is filed with the Clerk of this Court.
Request to Strike Claim from July 29, 2004 Trial Calendar
It appears to the Court from Defendant's motion for discovery that this matter is not yet ready for trial. As a result, the Court will strike the claim from its July 29, 2004 trial calendar, to be rescheduled at a later date.
Request to Amend Answer Pursuant to CPLR 3025
Defendant seeks permission to amend its answer to include an affirmative defense that the claim was not commenced in compliance with the applicable statute of limitations. Defendant asserts that the claim alleges an intentional tort, with an accrual date of December 2, 2002. Claimant did not serve his claim until February 4, 2004, and did not file it until December 29, 2003, beyond the one year statute of limitations for intentional torts (CPLR 215).

Pursuant to CPLR 3025, a party may amend his pleading at any time by leave of court, and "[l]eave shall be freely given upon such terms as may be just..." Issue has been joined for less than five months, discovery has not been completed, and there is no prejudice shown. Under these circumstances, the Court will grant Defendant's request to amend its answer to include a statute of limitations defense (see Architectural Builders Inc. v Pollard, 267 AD2d 704 [1999]; Town of Webster v Village of Webster, 280 AD2d 931[2001]; Sayers v Albicocco, 298 AD2d 572 [2002]).

Accordingly, as set forth herein, Defendant's motion is GRANTED. Defendant shall serve and file an amended answer as authorized in this Decision and Order within 30 days of the date this Decision and Order is filed with the Clerk of the Court.

July 19, 2004
Syracuse, New York

Judge of the Court of Claims

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

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

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General,

with exhibits attached thereto.....................................................................2

No response was received from Claimant.