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