New York State Court of Claims

New York State Court of Claims

LINEBERGER v. THE STATE OF NEW YORK, #2007-044-528, Claim No. 112585, Motion No. M-72903


Synopsis


Inmate claimant's motion to compel disclosure is moot. Request for sanctions denied; defendant's short delay in serving bill of particulars was not willful and did not prejudice claimant.

Case Information

UID:
2007-044-528
Claimant(s):
TONY LINEBERGER
Claimant short name:
LINEBERGER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112585
Motion number(s):
M-72903
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
TONY LINEBERGER, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 13, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an inmate proceeding pro se, filed this claim alleging medical malpractice and/or medical negligence. Defendant State of New York (defendant) answered and asserted various affirmative defenses.[1] Claimant now moves, pursuant to CPLR 3124 and 3126, to compel defendant to provide a bill of particulars and for sanctions. Defendant opposes the motion.

Claimant served a demand for bill of particulars on October 10, 2006 and states that as of January 22, 2007, he had not received a response. Claimant also requests sanctions in the amount of $5,000. Defendant contends that claimant’s motion is procedurally flawed and should be denied on that basis. Defendant also asserts that the bill of particulars has been served.

Claimant’s demand for a bill of particulars is not a discovery device under CPLR article 31, but instead is an amplification of a pleading which is governed by CPLR 3042. As defendant correctly notes, claimant may not compel compliance with the demand or request sanctions under CPLR 3124 and 3126. However, a motion to compel compliance with such a demand is authorized under CPLR 3042 (c) and the Court will treat the instant motion as having been made under that section. The Court, upon a finding of willful non-compliance, may award relief “as is just, including such relief as is set forth in [CPLR 3126]” (CPLR 3042 [d]; see also Siegel, NY Prac § 241, at 406 [4th ed]).

Defendant served and filed a bill of particulars dated January 30, 2007 in response to claimant's demand. Accordingly, to the extent that it seeks compliance with the demand, claimant's motion filed on February 1, 2007 is denied as moot. Claimant's request for sanctions remains, however. Claimant's demand was served on October 10, 2006 and filed on October 16, 2006. Claimant subsequently sent Assistant Attorney General (AAG) Roberto Barbosa a letter dated December 8, 2006, referencing the demand and requesting that defendant explain the delay in providing the bill of particulars.

Defendant does not deny that there was a delay in responding to the demand, but claims

that the “response was prepared and served as promptly as feasible.” Defendant further states that claimant sought information not properly contained in a demand for a bill of particulars and that he also requested defendant to expand on matters on which claimant has the burden of proof.

The allegedly improper demand did not extend the 30-day period in which defendant was

required to respond (CPLR 3042 [a]). Nonetheless, under these circumstances, the Court does

not find defendant’s short delay to be willful. Additionally, the Court does not discern that claimant has suffered any prejudice, particularly given that he presumably has received the response. Accordingly, claimant's request to impose sanctions on defendant is denied (Saratoga Harness Racing v Roemer, 290 AD2d 928, 929 [2002]; Puccia v Farley, 261 AD2d 83, 85 [1999]).

Claimant’s Motion No. M-72903 is denied in its entirety.

April 13, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion filed on February 1, 2007; Affidavit of Tony Lineberger sworn to January 22, 2007, and attached exhibits.
2) Affirmation in Opposition of Roberto Barbosa, AAG, dated February 7, 2007.

Filed Papers: Claim filed on July 31, 2006; Verified Answer filed on August 21, 2006; Amendments and Supplemental Claims/Pleadings filed on September 11, 2006, and Verified Supplemental Answer filed on October 2, 2006.



[1]. Claimant thereafter amended his claim and defendant served an answer to the amended claim.