New York State Court of Claims

New York State Court of Claims

MCQUEEN v. THE STATE OF NEW YORK, #2005-009-025, Claim No. 100133, Motion No. M-69840


Synopsis


Defendant's motion to dismiss the claim was granted based upon claimant's failure to comply with a conditional preclusion order.

Case Information

UID:
2005-009-025
Claimant(s):
RODNEY MCQUEEN
Claimant short name:
MCQUEEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100133
Motion number(s):
M-69840
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
RODNEY MCQUEEN, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 28, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

On May 5, 2004, claimant failed to appear for an examination before trial (EBT), which had been timely noticed by the defendant. Defendant then moved for an order to compel the claimant to appear for an EBT, and by a Decision and Order dated August 10, 2004[1], this Court directed claimant to attend an EBT to be scheduled by defendant.

Pursuant to the prior Decision and Order, defendant served claimant with a notice scheduling an EBT for February 24, 2005. As set forth in the Affirmation of defendant's attorney (see Item 2), claimant failed to appear for this scheduled EBT, and did not notify defendant's attorney that he was unable to attend.

Based on claimant's failure to attend the scheduled EBT as required by this Court's Decision and Order of August 10, 2004, defendant now moves for an order of dismissal. Claimant has not submitted any papers in opposition to this motion, nor has he contacted the Court in any manner whatsoever regarding the status of this claim. Additionally, the Court notes that in its prior Decision and Order of August 10, 2004 claimant was to be precluded from offering any testimony in support of his claim in the event that he failed to appear for the EBT.

Pursuant to CPLR § 3126, several sanctions may be applied against a party who refuses to submit to disclosure. These sanctions are clearly available if, as exists in the instant claim, a party disobeys an order directing disclosure.

In the instant claim, claimant has failed to appear for an EBT on two separate occasions, with the second refusal being in direct violation of an order of this Court requiring his attendance. As a result, defendant's request for the ultimate sanction of dismissal of the claim is warranted. Claimant, by his actions, has completely compromised defendant's ability to defend this claim.

Accordingly, based upon the foregoing, it is

ORDERED, that Motion No. M-69840 is hereby GRANTED; and it is further

ORDERED, that Claim No. 100133 is hereby DISMISSED.


April 28, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]See Decision and Order to Motion No. M-68644.