New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2005-019-514, Claim No. 109968, Motion No. M-69660


Synopsis


Claimant's motion for an order compelling the State to respond to discovery and/or strike the State's answer and/or affirmative defenses is denied.

Case Information

UID:
2005-019-514
Claimant(s):
ROBERT CARDEW
Claimant short name:
CARDEW
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109968
Motion number(s):
M-69660
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ROBERT CARDEW, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 8, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 York, Ct Cl, December 22, 2004, Lebous, J., Claim No. 109968, Motion No. M-69371 [UID No. 2004-019-603]).[1] The court 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 previously anticipated.


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 403, 404).


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.


March 8, 2005
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 109968, Motion No. M-69371, filed January 10, 2005.
  2. Notice of Motion No. M-69660, dated January 18, 2005, and filed January 21, 2005.
  3. Affidavit of Robert Cardew, in support of motion, sworn to January 18, 2005.
  4. Memorandum of Law, in support of motion, dated January 18, 2005.
  5. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated February 11, 2005, and filed February 14, 2005, with attached exhibit.
  6. Reply Affidavit of Robert Cardew, in support of motion, sworn to February 15, 2005, and filed February 18, 2005.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at