Claimant, an inmate appearing pro se, moves for an order compelling the
defendant to answer his discovery demands and/or striking the defendant's answer
and/or affirmative defenses for its failure to provide said discovery responses.
The State of New York (hereinafter "State") opposes the motion.
By way of background, claimant recently moved for a protective order with
respect to disclosure of his medical file. The State indicated in its response
to that motion that it was willing to re-draft the medical authorization in a
more case-specific manner and provide claimant with an itemized list of all
medical documents turned over to defendant by the Department of Correctional
Services. This court denied claimant's motion based upon the State's
willingness to revise the medical authorization. (Cardew v State of New
, Ct Cl, December 22, 2004, Lebous, J., Claim No. 109968, Motion No.
M-69371 [UID No. 2004-019-603]).
also encouraged the parties to resolve future discovery disputes without the
need for further court intervention. Said Decision and Order was filed on
January 10, 2005.
On or about December 9, 2004, while claimant's first motion was pending, he
served the State with Combined Demands and Interrogatories. On January 4, 2005,
after claimant had not received any discovery responses within the twenty-day
response time, he sent a letter of inquiry to the State. The State did not
respond to claimant's letter. Then, on January 21, 2005, only eleven days after
the prior Decision and Order was filed, claimant filed the instant motion for an
order striking the defendant's answer and/or affirmative defenses for its
failure to provide discovery responses to his December 9, 2004 demands pursuant
to CPLR 3126. In opposition, the State notes each of the documents referenced
in claimant's Combined Demands and Interrogatories which are the subject of this
motion implicate the health information that was the subject of the prior
motion. The State also explains that the Department of Correctional Services
has since amended its rules and regulations to allow the Office of the Attorney
General to obtain inmate medical records without the need for a medical
authorization and release. (Affirmation of Carol A. Cocchiola, AAG, ¶ 6).
This is all to say that the State advises that it is now in a position to
respond to claimant's discovery demands in a shorter period of time than
There is absolutely no basis for the relief sought by claimant. First,
claimant's filing of his first motion for a protective order suspended all
discovery of the particular matter in dispute. (CPLR 3103 [b]). The State
indicates that claimant's Combined Demands and Interrogatories served while the
motion was pending address health information that was the subject of that first
motion. As such, this court finds that the State was not obligated to respond
to those discovery demands while claimant's prior motion was pending. (CPLR
3103 [b]). As such, the court finds that the State has not engaged in "willful"
or "contumacious" behavior nor has it conducted itself in bad faith so as to
warrant sanctions such as striking its answer and/or affirmative defenses
pursuant to CPLR 3126. (Fitterer v Riedlinger's Towing Serv., 271 AD2d
Accordingly, in view of the foregoing, it is ORDERED that claimant's motion for
an order striking the State's affirmative defenses and/or answer, Motion No.
M-69660, is DENIED.
DECISION AND ORDER, Lebous, J., Claim No. 109968, Motion No. M-69371, filed
January 10, 2005.
Notice of Motion No. M-69660, dated January 18, 2005, and filed January 21,
Affidavit of Robert Cardew, in support of motion, sworn to January 18,
Memorandum of Law, in support of motion, dated January 18, 2005.
Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated February
11, 2005, and filed February 14, 2005, with attached exhibit.
Reply Affidavit of Robert Cardew, in support of motion, sworn to February 15,
2005, and filed February 18, 2005.