New York State Court of Claims

New York State Court of Claims

MARTINO v. THE STATE OF NEW YORK, #2007-037-059, Claim No. 111608, Motion No. M-74230


Synopsis


Defendant’s motion to compel discovery granted.

Case Information

UID:
2007-037-059
Claimant(s):
JOHN MARTINO
Claimant short name:
MARTINO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111608
Motion number(s):
M-74230
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
John Martino, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s motion to compel discovery:
1. Notice of motion and supporting affidavit of Assistant Attorney General William

D. Lonergan sworn to November 16, 2007, with annexed Exhibits A-C.


Filed papers: Claim filed November 9, 2005; Answer filed December 15, 2005.

Pro se Claimant, John Martino, filed and served a claim in November of 2005 alleging that Defendant negligently failed to provide him with certain drug treatment programs while he was incarcerated at Collins Correctional Facility and, thus, prevented him from earning time reductions that would have made him eligible for earlier release from prison. In July of 2006, Defendant served and filed its demand for a bill of particulars and notice for discovery and inspection. In August of 2006, Claimant served and filed a partial answer to Defendant’s notice for discovery and inspection, but declined therein to respond to items #3, # 4, #5 and # 6, alleging that he needed additional time to respond while he sought the assistance of counsel. Claimant has never responded to Defendant’s demand for a bill of particulars, provided further responses to Defendant’s notice for discovery and inspection, or retained counsel to represent him with respect to this claim. Defendant now moves for an order compelling the pro se Claimant to respond to its demand for a bill of particulars and to provide a more complete response to its notice for discovery and inspection.

While the Court is sympathetic to Claimant’s desire to retain counsel, Defendant has been more than patient awaiting responses to its discovery demands which it needs to prepare for depositions and to defend this claim. During a preliminary conference conducted in January of 2007, Defendant’s outstanding discovery demands were discussed. Shortly thereafter, Defendant’s counsel wrote to the Claimant outlining the deficiencies in his response to its demand for discovery and inspection and requested a response to its demand for a bill of particulars (see Defendant’s Exhibit B). Another conference was conducted by the Court in April of 2007. During this conference Claimant advised that he had contacted a lawyer and assumed that this lawyer would respond to Defendant’s outstanding discovery demands. The conference was adjourned for one month to allow Claimant’s lawyer the opportunity to file a notice of appearance and Claimant was advised that a scheduling order would issue if counsel did not appear and responses to Defendant’s discovery demands remained outstanding. A further conference was conducted in May of 2007. No notice of appearance was filed and no lawyer appeared on behalf of the Claimant. As a result, a scheduling order was issued which gave Claimant until August 17, 2007 to respond to Defendant’s discovery demands. This same order warned that:
“[f]ailure to comply with these deadlines may result in a motion to compel responses and to preclude certain evidence from being submitted at trial without further permission of the Court, and could additionally lead to the dismissal of the claim for failure to prosecute.”

A copy of this scheduling order was forwarded to all parties by the Court and an additional copy was forwarded to Claimant by Defendant’s counsel by letter dated May 31, 2007 (see Defendant’s Exhibit C). The deadline set in the scheduling order for Claimant to respond to Defendant’s outstanding discovery demands has expired and Claimant has failed to provide a response to Defendant’s demand for a bill of particulars or further responses to Defendant’s demand for discovery and inspection, and has even failed to respond to this motion.[1] Accordingly, it is hereby

ORDERED, that Defendant’s motion (M-74230) is granted to the extent that Claimant shall have 60 days from the filed date of this decision and order to serve a verified bill of particulars in response to Defendant’s demand and further responses to Defendant’s demand for discovery and inspection, or Claimant will be precluded from offering evidence at trial of any material demanded in Defendant’s demand for a bill of particulars or in Defendant’s demand for discovery and inspection.



January 11, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. The Court is aware that Defendant’s motion papers as well as a copy of a letter by the Chief Clerk of the Court advising of the return date of this motion were returned by the United States Postal Service as being “Not Deliverable as Addressed Unable to Forward.”Both were sent to Claimant at the address given to the Court by Claimant: 46 Delmar Street, Rochester, New York 14606. This is the same address that the Court had successfully used in the past to schedule conferences. It is Claimant’s responsibility to keep the Chief Clerk of the Court of Claims apprised of any changes in his post office address or telephone number within ten days of their occurrence (see 22 NYCRR 206.6 [f]). If Claimant is unaware of Defendant’s motion, it is solely the result of his failure to comply with the Court’s governing regulations.