New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2006-015-090, Claim No. 109359, Motion No. M-71360


Synopsis


Claim dismissed for claimant's failure to comply with conditional order requiring bill of particulars and responses to omnibus demands.

Case Information

UID:
2006-015-090
Claimant(s):
CLINTON SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109359
Motion number(s):
M-71360
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
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:
May 19, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State's motion for summary judgment seeking an order dismissing the claim upon the claimant's failure to comply with the Court's previously issued conditional order of preclusion is granted. The instant claim filed on May 14, 2004 seeks to recover damages for personal injuries sustained as a result of the alleged malpractice/negligence of medical personnel at two separate facilities operated by the Department of Correctional Services.

On May 28, 2004 the defendant served upon the claimant a demand for a verified bill of particulars and a separate omnibus discovery 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.

Claimant failed to respond to either demand prompting a motion by defendant to compel responses. By decision and order dated October 3, 2005 this Court compelled service of a verified bill of particulars and responses to the omnibus demands within 45 days of service of that decision and order. The Court specified that preclusion would result from claimant's failure to serve the verified bill of particulars and discovery responses as directed without the necessity of a further motion.

Claimant failed to serve a verified bill of particulars or written responses to the omnibus demands as directed in the Court's prior order and the defendant has established that the claimant was served with a copy of the Court's decision and order on October 19, 2004 [sic][1]. Defendant now moves for summary judgment dismissing the claim based upon claimant's failure to comply with the Court's October 3, 2005 order on the ground that claimant is precluded as a matter of law from offering evidence at trial necessary to establish a prima facie case.

Despite proof that the instant motion was served upon the claimant he has not opposed the motion.

Claimant's unexcused failure to serve a verified bill of particulars or responses to the omnibus discovery demands within the time allotted in the Court's conditional order dated October 3, 2005 now precludes him from offering at trial evidence necessary to establish a prima facie case. As a result the defendant's motion for summary judgment is granted and the claim is dismissed (see, Nicoletti v Ozram Transp. 286 AD2d 719; Barriga v Sapo, 250 AD2d 795).


May 19, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated February 17, 2006;
  2. Affirmation of G. Lawrence Dillon dated February 17, 2006 with exhibits.


[1].Pursuant to CPLR 2001 the Court has chosen to ignore the typographical error contained in defendant's affidavit of service of the Court's prior order which indicated service took place in 2004 rather than 2005.