New York State Court of Claims

New York State Court of Claims

SILVA v. THE STATE OF NEW YORK, #2007-044-539, Claim No. 111260, Motion No. M-72991


Court granted defendant's motion to compel response to demand for expert witness, to the extent that claimant had obtained such a witness.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Heather R. Rubenstein, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging that he received negligent medical treatment during his incarceration at Elmira Correctional Facility. Defendant State of New York (defendant) answered, asserted several affirmative defenses, and served discovery demands. Defendant now moves to compel claimant’s response or, in the alternative, to preclude him from admitting evidence at trial that pertains to information sought in the demands. Claimant opposes the motion. Upon a party’s willful failure to disclose information which the Court finds should have been disclosed, the Court may issue an order compelling such disclosure or precluding that party from offering evidence which is related to the information previously requested (CPLR 3124, 3126). The determination of whether a party intentionally, willfully or in bad faith failed to comply with a discovery demand is to be tempered by a “general policy favoring the resolution of actions on their merits ” (Mrs. London's Bake Shop v City of Saratoga Springs, 144 AD2d 749, 750 [1988]; see Kinge v State of New York, 302 AD2d 667, 669 [2003]). A clear showing of willful or contumacious conduct must be present before the Court issues an order of preclusion (see Kinge v State of New York, supra; Osterhoudt v Wal-Mart Stores, 273 AD2d 673, 675 [2000]).

On or about November 14, 2005, defendant served claimant with a demand for information regarding expert witness and a demand for medical records and authorizations. Assistant Attorney General (AAG) Heather R. Rubinstein avers that as of February 21, 2007, claimant has failed to reply to the demands. Defendant requests that the Court compel claimant to respond to the demands or to be precluded for offering evidence at trial which is related to the requested information.

In opposition to the motion, claimant avers that he has difficulty communicating in English and had relied on fellow inmates working at the law library to assist him with this claim. Claimant asserts that those inmates have been transferred to different correctional facilities. Claimant also states that he initially replied to the motion by providing defendant with a notarized medical authorization/request. The Court has not received any further communication from AAG Rubenstein and presumes that claimant’s submission satisfied the demand for medical records and authorizations. As a result, that portion of defendant’s motion is deemed moot.

Claimant has not responded to that portion of the motion which seeks compliance with the demand for information concerning expert witness(es).[1] Accordingly, defendant’s motion is granted to the extent that claimant must provide the information requested in the demand for information regarding expert witness (to the extent that he has ascertained the identity of any such witness or witnesses) dated November 14, 2005 within 20 days of the filing date of this decision and order.[2] If claimant retains an expert witness (or witnesses) at some future date, he is reminded that he must disclose to defendant all information requested in the existing demand for information regarding such expert(s).

June 20, 2007
Binghamton , New York

Judge of the Court of Claims

The following papers were read on defendant’s motion to compel disclosure:

(1) Notice of Motion filed on February 23, 2007; Affirmation of Heather R. Rubinstein, AAG, dated February 21, 2007 with annexed Exhibits A through C.

(2) Affidavit of Gilberto Silva sworn to on February 27, 2007, in opposition to the motion to compel.

Filed papers: Claim filed on August 15, 2005; Verified Answer filed on November 14, 2005.

[1]. Although claimant states that he may learn the names of defendant’s employees that may be called as witnesses after further discovery, he does not discuss any potential expert witnesses.
[2]. Claimant argues that defendant’s failure to provide an actual return date on this motion is a jurisdictional defect requiring dismissal. That argument is without merit. The Clerk of the Court, by letter dated February 27, 2007, notified both parties that March 28, 2007 was the return date of this motion.