New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2005-015-043, Claim No. 109359, Motion No. M-70512


45 day conditional order issued directing claimant to serve a bill of particulars.

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:
Clinton Smith, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 3, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for an order pursuant to CPLR 3042 (c) compelling claimant to serve a bill of particulars in response to a demand dated May 25, 2004 and for an order pursuant to CPLR 3124 compelling responses to defendant's omnibus discovery demands dated May 25, 2004 is granted. Claimant shall serve and file a verified bill of particulars and responses to the defendant's discovery demands within 45 days of service upon him of a copy of this decision and order with notice of entry.

The claim filed May 14, 2004 seeks to recover $750,000 in damages for injuries allegedly sustained by claimant due to the medical negligence or medical malpractice of the defendant's employees or agents in failing to properly diagnose and treat an eye condition at either the Riverview Correctional Facility, Ogdensburg, New York or at Wallkill Correctional Facility, Wallkill, New York, beginning in or about March 2003. On May 28, 2004 defense counsel served a demand for a bill of particulars and a separate omnibus demand for names and addresses of witnesses, authorizations to obtain employment and/or school records, disclosure of expert witnesses, discovery and inspection of collateral sources, discovery and inspection of photographs, notice of examination before trial and a supplementation notice.

It is alleged on this unopposed motion that claimant has not objected to or responded to any of the demands or to defense counsel's subsequently served written requests for responses and a bill of particulars.

CPLR 3042 (c) provides: "If a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or if such failure is willful, for the imposition of penalties pursuant to subdivision (d) of this rule." CPLR 3124 provides: "If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article except a notice of admit under section 3123, the party seeking disclosure may move to compel compliance or a response."

Based upon the proof presented and in the absence of opposition to the motion, claimant is hereby ordered to serve upon the defendant and file with the Clerk of the Court a verified bill of particulars and written responses to defendant's discovery demands within 45 days of service upon him of this decision and order with notice of its filing. In the event claimant fails to serve and file the required documents within the prescribed period he shall be precluded from offering any evidence at trial related to items set forth in either of the separate demands and no further motion shall be required.

October 3, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 26, 2005;
  2. Affirmation of G. Lawrence Dillon dated July 26, 2005 with exhibits.