New York State Court of Claims

New York State Court of Claims

KNIGHT v. THE STATE OF NEW YORK, #2007-030-536, Claim No. 111713, Motion No. M-73020


Synopsis


Motion to strike defendant’s answer pursuant to Civil Practice Law and Rules §3126 based upon an alleged failure to disclose denied. No permission given to make motion [22 NYCRR §206.8(c)]; no demands served by claimant on file in the Clerk’s office as required [see 22 NYCRR §206.5(c)] nor are they appended to motion papers. No mention in moving papers of confidential disclosure agreement between parties. Claimant alleges that while he was a youth resident in the custody of the Middletown Residential Center of the New York State Division for Youth he was assaulted by a State employee using excessive force

Case Information

UID:
2007-030-536
Claimant(s):
DAVON KNIGHT, by his mother and natural guardian, SONYA KNIGHT
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
KNIGHT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111713
Motion number(s):
M-73020
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KASTON ABERLE & LEVINEBY: RICHARD M. ABERLE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 1, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion to strike defendant’s answer pursuant to Civil Practice Law and Rules §3126 based upon an alleged failure to disclose:
1,2 Notice of Motion; Affirmation by Richard M. Aberle, Counsel for Claimant, and attached exhibits

  1. Affirmation by Barry Kaufman, Assistant Attorney General, and attached exhibit
4,5 Filed papers: Claim, Answer

Claimant alleges in his claim that on May 30, 2005 while he was a youth resident in the custody of the Middletown Residential Center of the New York State Division for Youth he was assaulted by a State employee using excessive force. More specifically, he recites that he was thrown to the ground, and further restrained, resulting in serious injuries including a fractured hip and psychological trauma, and incurred hospital and medical expenses. The total sum claimed as damages is Five Million Dollars ($5,000,000.00).

In the present motion counsel asserts that the defendant has wilfully failed to provide discovery within the time frames agreed to in a “so ordered” Preliminary Conference Order. The Affirmation does not indicate that the requirements of 22 NYCRR §206.8(b) were met, nor does it attach copies of the demands made. In response to the motion, defendant has produced a copy of a Stipulation and Order of Confidentiality and Disclosure “so ordered” by this Court on September 14, 2006, and filed in the Office of the Chief Clerk of the Court of Claims on October 5, 2006, a Response to Claimant’s Combined Discovery Demand filed without confidential attachments in the Office of the Chief Clerk on April 23, 2007, and the Affirmation of the Assistant Attorney General.

There do not appear to be any demands served by claimant on file in the Clerk’s office as required [see 22 NYCRR §206.5(c)]; nor has claimant, as noted above, appended copies of demands to his moving papers. Thus any review of what responses have been made by the defendant is rendered meaningless, as they reference items by paragraph number. Additionally, claimant does not reference the Stipulation and Order of Confidentiality in his papers, and, at this point it appears that consent discovery has nonetheless proceeded, albeit slowly.

Accordingly, there is no reason to impose an extreme sanction such as striking the defendant’s answer, and claimant’s motion to do so is in all respects DENIED.

With regard to any in camera inspection of the documents produced by defendant as part of the response, the court is at a loss to proceed absent review of claimant’s demands. Accordingly, claimant is directed to file with the Clerk’s office a copy of the demands referred to, within thirty (30) days of the filed-stamped date of this decision and order.


June 1, 2007
White Plains, New York

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