New York State Court of Claims

New York State Court of Claims

BENNETT v. THE STATE OF NEW YORK, #2005-010-030, Claim No. 107199, Motion No. M-69670


Synopsis


Claimant's motion for an order striking defendant's answer is denied and for in camera inspection of records is granted..

Case Information

UID:
2005-010-030
Claimant(s):
STUART BENNETT
Claimant short name:
BENNETT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107199
Motion number(s):
M-69670
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
ROBERT W. NISHMAN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Judith McCarthy, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 6, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on claimant's motion for, inter alia, an order striking defendant's answer:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Attorney's Affirmation in Opposition and Exhibits...................................................2

Attorney's Reply Affirmation...................................................................................3

Attorney's Letter of April 15, 2005..........................................................................4

"[T]he drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious" (Calle v Robert Champeau, Inc., 16 AD3d 535). Claimant has failed to make the requisite showing warranting such a drastic remedy. Accordingly, that branch of claimant's motion is DENIED. However, claimant's motion is GRANTED to the extent that defendant is directed to produce to the Court, within 30 days of the filing date of this Decision and Order, any records of injuries sustained by a correction officer on the staircase in question within a two year period prior to claimant's accident. The Court will then conduct an in camera review of those records and release those material and relevant to the prosecution of this claim.


June 6, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims