New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2005-019-561, Claim No. 110023, Motion No. M-70508


Synopsis


Claimant's motion to strike the defendant's answer and/or affirmative defenses

for delay in responding to discovery deadline is denied.

Case Information

UID:
2005-019-561
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):
110023
Motion number(s):
M-70508
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:
August 24, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for an order striking the defendant's answer and/or affirmative defenses due to its failure to timely respond to his discovery demands, as well as this court's own deadline. The State of New York (hereinafter "State") opposes the motion.

By way of background, claimant made a prior motion to compel a response to his discovery demands. This court granted the State's request in connection thereto for a sixty-day extension to obtain additional information and documents in order to respond fully to claimant's discovery demands, as well as directing the State to submit certain other documents to the court within sixty days for the purpose of an in camera review. (Cardew v State of New York, March 8, 2005, Ct Cl, Lebous, J., Claim No. 110023, Motion No. M-69700 [UID No. 2005-019-515]).[1] In compliance with said Decision & Order, the State timely submitted the requested documents to the court for an in camera review and a determination was issued with respect thereto. (Cardew v State of New York, June 9, 2005, Ct Cl, Lebous, J., Claim No. 110023, Motion No. M-69700 [UID No. 2005-019-537]).


Now, by way of this motion, claimant alleges that he has yet to receive the remaining information and documents which were to be provided to him directly within the sixty-day extension time frame. In opposition, the State concedes that it missed the sixty-day deadline, but avers that it provided claimant with the discovery documents on March 28, 2005.


The court will accept the State's representation that it has provided claimant with the remaining documentation. With respect to the delay, although the State could have responded more promptly and advised claimant and the court by way of letter that a response would be delayed but forthcoming, the court notes that this matter has not yet been set for trial and, as such, finds no resulting prejudice to claimant due to the State's delay in responding to these discovery demands.


Accordingly, for the reasons stated above, it is ORDERED that claimant's motion to strike the defendant's answer and/or affirmative defenses, Motion No. M-70508, is DENIED.


August 24, 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. Claim, filed October 27, 2004.
  2. Verified Answer, filed November 24, 2004.
  3. DECISION AND ORDER, Lebous, J., Claim No.110023, Motion No. M-69700, filed March 22, 2005.
  4. DECISION AND ORDER, Lebous, J., Claim No. 110023, Motion No. M-69700, filed June 15, 2005.
  5. Notice of Motion No. M-70508, dated July 15, 2005, and filed July 20, 2005.
  6. Affidavit of Robert Cardew, in support of motion, sworn to July 15, 2005.
  7. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated August 10, 2005, and filed August 12, 2005, with attached exhibit.

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