New York State Court of Claims

New York State Court of Claims

ROGERS v. THE STATE OF NEW YORK, #2007-038-502, Claim No. 110433, Motion No. M-72391


Synopsis


Defendant’s opposition to claimant’s motion to compel disclosure deficient because it was not offered in admissible form.

Case Information

UID:
2007-038-502
Claimant(s):
ROBERT ROGERS
Claimant short name:
ROGERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110433
Motion number(s):
M-72391
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
ROBERT ROGERS, PRO SE
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Stephen J. Maher, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 1, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks recovery for injuries allegedly sustained on December 1, 2003 at Upstate Correctional Facility (hereinafter “Upstate”). The claim alleges that defendant negligently failed to clear ice and snow from the bus entrance, causing claimant to slip and fall while disembarking from a bus. The instant motion requests an order compelling defendant to comply with his discovery demands. Defendant responded to the motion by letter, in which counsel contended that the motion is premature because the motion was made before defendant had the opportunity to respond to claimant’s demand. Defendant further stated that it had previously and adequately responded to claimant’s demands. Nevertheless, counsel requested an adjournment of the motion to facilitate further review of and response to claimant’s second discovery demand. That request was granted, and defendant thereafter served and filed a supplemental response. The particular discovery requests at issue are those by which claimant seeks the name, inmate number and current location of the person to whom he was shackled during his transfer from Franklin Correctional Facility to Upstate along with the identities of the other individuals on the bus that transported claimant from Franklin Correctional Facility to Upstate. In the supplemental discovery response, defendant denies possession of the information claimant seeks, and counsel sets forth factual explanations for that lack of possession.

While the document entitled “First Supplemental Response to ‘Discovery’” may be an adequate response to claimant’s discovery demand, it is not in proper form to serve as opposition to claimant’s motion. Specifically, the document is not in admissible form, as it sets forth facts that are offered only upon information and belief of the Assistant Attorney General. Opposition to claimant’s motion must be submitted in the form of an affidavit of a person or persons with personal knowledge of the represented facts (see CPLR 2214 [b]; 22 NYCRR §§ 206.9 [b]; 202.8 [c]; Siegel, NY Prac §246, at 416 [4th ed]).

Because of this flaw in form, the Court cannot deny claimant’s motion. On the other hand, it would be futile for the Court to ignore the substance of the Supplemental Response and grant the motion on the ground that defendant’s opposition is deficient. Rather, the Court will give defendant the opportunity to oppose the motion with documents in proper form.

Accordingly, determination of claimant’s Motion #M-72391 is held in abeyance, and the motion is placed back on the Court’s Motion Calendar and assigned a return date of February 28, 2007.


February 1, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered:

(1) Notice of Motion, filed October 12, 2006;

(2) Discovery Demand, sworn to September 13, 2006;

(3) Correspondence of Stephen J. Maher, Esq., AAG, dated October 19, 2006;

(4) Correspondence of Stephen J. Maher, Esq., AAG, dated October 20, 2006;

(5) Claimant’s Discovery Demand, filed February 8, 2006;

(7) Defendant’s Response to Discovery, filed June 2, 2006;

(8) Defendant’s First Supplemental Response to Discovery, filed November 13, 2006.