New York State Court of Claims

New York State Court of Claims

HEMPHILL v. THE STATE OF NEW YORK, #2004-032-031, Claim No. 106796, Motion No. M-67971


Synopsis


Case Information

UID:
2004-032-031
Claimant(s):
JOHN HEMPHILL
Claimant short name:
HEMPHILL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106796
Motion number(s):
M-67971
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
John Hemphill, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 1, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This wrongful confinement is based on allegations that claimant was improperly confined to keeplock for a period of fourteen days, beginning July 11, 2002. By this motion, claimant seeks an order compelling defendant to produce certain documents.


Defendant first received a letter requesting this disclosure on January 14, 2004 (Friedman affirmation, ¶5, Exhibit B). Claimant then sent a letter dated January 20, 2004 (id., ¶3, Exhibit E), reiterating the demands and stating that defendant had five days in which to produce the documents. This motion was then instituted by claimant eight days later.[1] According to claimant, however, the items were first sought in a set of interrogatories that were served on defendant in October 2002[2] (Hemphill affidavit, ¶5). A comparison of those interrogatories with the list of documents currently being demanded reveals that claimant is incorrect, however. The Court finds that the documents were first demanded from defendant on January 14, 2004.

CPLR 3120(2) provides that the party on whom a notice to produce is served has at least twenty (20) days before a response is required. Accordingly, this motion was premature when it was commenced on January 28, 2004. The defendant had no obligation to respond to the discovery demand until February 9, 2004. The time for production of these documents has now passed, although it is not clear to the Court which of the seven items have been received by claimant. While it would now be possible to inquire into the status of discovery in determining this motion, the Court is reluctant to do so, for it would only encourage litigants to ignore the statutory time periods and possibly increase the number of motions filed, motions that might well be unnecessary if sufficient time is allowed for a response.

Claimant's motion is denied.



June 1, 2004
Albany, New York
HON. JUDITH A. HARD
Judge of the Court of Claims



The following papers were read on claimant's motion for an order compelling certain discovery
1. Notice of Motion and Supporting Affidavit of John Hemphill, pro se, with annexed Exhibits

2. Affirmation in Opposition of Michael W. Friedman, Esq., AAG, with annexed Exhibits

3. Reply Memorandum of Law of John Hemphill, pro se

Filed papers: Claim; Answer




[1] The notice of motion arrived at the Court on January 28, 2004, but the annexed affidavit of service indicates that the copy sent to the Attorney General was mailed on January 23, 2004.
[2] Those interrogatories were the subject of an earlier motion, Motion No. M-66937 (decided October 22, 2003), in which claimant sought an order compelling defendant to respond to them. That motion was denied on the ground that it was premature.