New York State Court of Claims

New York State Court of Claims

HUGHES v. THE STATE OF NEW YORK , #2006-030-522, Claim No. 107397, Motion No. M-71330


Synopsis



Case Information

UID:
2006-030-522
Claimant(s):
JERRY HUGHES
Claimant short name:
HUGHES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107397
Motion number(s):
M-71330
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
JERRY HUGHES, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
March 27, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 6 were read and considered on Claimant's motion to


compel:

1,2 Notice of Motion to Compel, Affidavit in Support of Motion to Compel by Jerry Hughes, Claimant, sworn to February 21, 2006, and attached exhibits

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General, dated March 6, 2006 and attached exhibits
4,5 Filed papers: Claim, Answer

  1. Letter to Claimant from Court dated December 19, 2005 scheduling claim for trial on March 3, 2006[1]
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Jerry Hughes, the Claimant herein, alleges in Claim Number 107397 that Defendant's agents negligently or intentionally destroyed his property while he was an inmate at Green Haven Correctional Facility (hereafter Green Haven). If the loss was intentional, he asserts that it was in retaliation for his having brought disciplinary charges against an employee. In addition to a general denial in its Verified Answer, the Defendant raises the Affirmative Defense of Claimant's alleged culpable conduct or the culpable conduct of others for whom Defendant has no legal responsibility.

In a prior Decision and Order this Court denied a previous motion by Claimant to strike Defendant's affirmative defenses based upon Defendant's purported failure to respond to a series of Notices to Admit as well as a Demand for a Bill of Particulars. [See Hughes v State of New York, Claim No. 107397, Motion No. M-67283 Decision and Order (Scuccimarra, J., December 3, 2003)]. With respect to the Notices to Admit, the Court had ruled that they were not proper requests in any event. With respect to the Demand for a Bill of Particulars, the court had said that if there was no response then a motion to compel one should be made, and that failing to respond might mean preclusion at trial. Possessed of a copy of this decision for over two (2) years, Claimant only now makes a motion after the Court has scheduled the matter for trial.

Accordingly, the motion is denied as untimely as an initial matter.

More substantively, and as noted by the Defendant in the Affirmation in Opposition to the present motion, the particulars demanded concerning Defendant's Affirmative Defense - contained in two, numbered paragraphs asking what Claimant's culpable conduct was - are to the effect that some time prior to the December 3, 2002 property claim for his radio Claimant altered the radio, played it too loudly, and it was duly confiscated during a disciplinary hearing that had been dismissed for procedural reasons. [Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General, Exhibits 3 and 4]. According to the hearing officer, he had asked Claimant whether Claimant wanted the radio sent home, or destroyed in accordance with policy concerning contraband. [ibid. Exhibit 4]. The officer indicated that the Claimant "refused to do anything," the appropriate disposal form was made out, and the radio was presumably destroyed in accordance with that instruction. [ibid. Exhibit 4].

While it might have been appropriate for the Defendant to respond to the demand for particulars when it was made in July 2003 [see generally Civil Practice Law and Rules §3042], the Claimant has likewise not adequately sought to compel a response since the Court suggested it in the decision and order filed December 3, 2003. Preclusion is not warranted.

Accordingly, Claimant's motion [M-71330] is in all respects denied. The matter is scheduled for trial on April 21, 2006.

March 27, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] Because of this motion practice, the date for trial was adjourned to April 21, 2006.