1. Notice of Motion and Supporting Affirmation of Kevan J. Acton, AAG
2. Affidavit in Opposition (“Response”) of Anthony Dobbin, pro
Filed papers: Claim; Answer This claim is based on allegations that in 2001 and
2002, while Claimant was incarcerated at Clinton Correctional Facility, he
received inadequate and improper medical treatment of a skin condition,
resulting in an extended period of discomfort and in permanent discoloration of
his skin. The claim was filed and served in October, 2002, and issue was joined
the following month. During the following years, Claimant was moved from one
correctional facility to another rather frequently, and he always informed the
Court of his new address.
By letter dated February 24, 2006, the parties were notified that this action
would be tried on May 5, via videoconferencing from Clinton Correctional
According to Claimant’s
response to the motion, Defendant served some discovery demand on Claimant in
March 2006 (Dobbin affidavit, ¶1). According to Defendant’s papers,
Claimant served a demand for expert disclosure, a demand for document discovery
and interrogatories on Defendant on April 12, 2006 (Acton affirmation, ¶
2). Claimant apparently raised no objection to the March 2006 demand that he
received, but counsel for Defendant has moved to strike the April 2006 demands
as untimely, in that they were served so close to the trial date.
As counsel accurately notes, a prisoner pro se litigant in this Court is
not required to serve and file a Note of Issue and Certificate of Readiness (22
NYCRR § 206.12[a]). Consequently, there is no point that the parties
formally attest that discovery is complete and the matter ready for trial
(see Siegel, Practice Commentaries, McKinney's Con Laws of NY, Book 7B,
CPLR C3402:5, at 16-17). On the other hand, courts have considerable inherent
power to control their calendars (M.D. v Pasadena Realty Co., 300 AD2d
235 [1st Dept 2002]; Zeitin v Greenberg, Margolis, Ziegler, Schwartz, Dratch,
Fishman, Franzblau & Falkin, 262 AD2d 406 [2d Dept 1999]), and this
power would include the ability to place some realistic time limit on the
parties’ ability to conduct discovery.
Because neither party has submitted a copy of the demands in question, it is
impossible for the Court to determine if the material and information being
sought is relevant, critical to the case and/or something that Claimant, who
bears the burden of proving his case, should reasonably have obtained sometime
within the three and a half years that this case has been pending.
Defendant’s motion is DENIED, without prejudice to either party’s
right to bring a similar motion on proper papers. In addition, the parties are
directed to serve and file all remaining discovery demands within 45 days of the
date this Decision and Order is filed-stamped and to provide responses to such
demands within 90 days of that date.