New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-015-221, Claim No. 112879, Motion No. M-73356


Synopsis


Motion to compel discovery denied in part and granted in part.

Case Information

UID:
2007-015-221
Claimant(s):
ALBERTO 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):
112879
Motion number(s):
M-73356
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Robert K. Young & AssociatesBy: Jack Cutrone, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: John L. Belford, IV, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 24, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for an order pursuant to CPLR 3124 and 3126 compelling the defendant to respond to Plaintiff's Demand for Discovery and Inspection dated November 13, 2006 or be precluded from asserting a defense with respect to matters for which discovery was requested but not provided. Claimant also seeks an order compelling the defendant to appear for an examination before trial or be precluded from offering any trial testimony. Claimant further requests that the answer be stricken should the defendant fail to appear as directed in the order. Defendant responded to the claimant's Demand for Discovery and Inspection on May 15, 2007 (Defendant's Exhibit A) and counsel for the claimant failed to submit reply papers or otherwise respond to the defendant's opposition by asserting that the response provided was in any way inadequate. Accordingly, this branch of the claimant's motion is denied as moot.

In opposition to claimant's motion, defendant makes no mention of whether or not it intends to produce a witness for an examination before trial. Inasmuch as a stipulation was recently so ordered by the Court with respect to the examination before trial of the claimant, who is now incarcerated, it is hereby

ORDERED that on or before September 10, 2007, the date previously ordered for the completion of discovery and the filing of the note of issue, the defendant shall produce a witness for examination before trial consistent with the claimant's previous demands therefor.

July 24, 2007
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 May 2, 2007;
  2. Affirmation of Jack Cutrone dated May 2, 2007 with exhibits;
  3. Affirmation of John L. Belford, IV dated May 15, 2007 with exhibit.