New York State Court of Claims

New York State Court of Claims

PIECHOCKI v. STATE OF NEW YORK, #2007-018-586, Claim No. 111581, Motion No. M-73803


Synopsis


The Court grants Defendant’s motion, allowing Claimant 30 days from the date this Decision and Order is filed with the Clerk of the Court to provide a verified bill of particulars and responses to all Defendant’s discovery demands. If no bill of particulars and discovery responses are filed within those 30 days, the Court will enter a final order dismissing the action.

Case Information

UID:
2007-018-586
Claimant(s):
TINA PIECHOCKI, as Executrix of the Estate of JEROME PIECHOCKI, Deceased
Claimant short name:
PIECHOCKI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111581
Motion number(s):
M-73803
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
NICOLETTE, HORNING, CAMPISE & SWEENEYBy: John A. V. Nicoletti, Esquire, of Counsel
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Patrick F. MacRae, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 29, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion pursuant to CPLR 3126 to dismiss the claim due to Claimant’s


failure to comply with discovery demands. Claimant has not responded to the motion and the Court has received no indication that responses to the discovery demands have been provided.

The claim was brought by the Executrix of the Estate of Jerome Piechocki for his untimely death allegedly due to the medical malpractice of Defendant at the State University of New York Upstate Medical University on November 4, 2003. A verified answer was filed on December 8, 2005, and a demand for a verified bill of particulars and discovery demands were served upon Claimant on December 5, 2005.

A preliminary conference was held with this Court on October 11, 2006. A Preliminary Conference Order was made directing Claimant to comply with Defendant’s discovery demands and provide a verified bill of particulars by November 10, 2006. Thereafter, counsel requested an extension of time and the Court signed an Amended Preliminary Conference Order dated January 29, 2007. In this Amended Preliminary Conference Order, Claimant was directed to provide a verified bill of particulars and discovery demands by January 22, 2007, a signed medical authorization by February 26, 2007, and expert witness disclosure by March 5, 2007. Nor further requests for extensions have been requested or granted.

A conference call was held on August 2, 2007, before this motion to dismiss was calendared in accordance with § 206.8(b) of the Rules for the Court of Claims. At that time, Claimant’s counsel indicated some difficulty in obtaining the discovery information from Claimant. The Court has received no further contact from Claimant.

CPLR 3126 provides that if a party fails to obey an order for discovery or wilfully fails to disclose information which should have been disclosed pursuant to Article 31 of the CPLR, the Court may order that the issues to which the information sought are relevant shall be deemed resolved for purposes of the action, in accordance with the claims of the defendant, or may prohibit the disobedient party from supporting or opposing designated claims or defenses or producing in evidence designated items or testimony, or may strike the claim or parts thereof, stay further proceedings, or dismiss the action (CPLR 3126[1]-[3]).

The Court finds that Claimant has had ample opportunity to supply the information demanded or to request further extensions of time in order to respond to the demands. The Claimant has repeatedly failed to comply with the Court’s discovery Orders.

Accordingly, the Court grants Defendant’s motion subject to giving Claimant thirty days from the date this Decision and Order is filed with the Clerk of the Court to provide a verified bill of particulars and responses to all Defendant’s discovery demands. If no bill of particulars and discovery responses are filed with the Clerk of the Court within those thirty days, the Court will enter a final order dismissing the action.




October 29, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion....................................................................................1


Affirmation of Patrick F. MacRae, Esquire, Assistant Attorney

General, in support.....................................................................2


No response to the motion was received from Claimant’s attorney.