New York State Court of Claims

New York State Court of Claims

BLACKWELL and VOGEL v. THE STATE OF NEW YORK, #2008-032-100, Claim No. 101994, Motion Nos. M-72644, M-74073


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):
M-72644, M-74073
Cross-motion number(s):

Claimant’s attorney:
James Blackwell and Marjorie Vogel, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, New York State Attorney GeneralBy: Dennis M. Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 7, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant James Blackwell [hereinafter claimant] brings two motions before the Court.[1] In Motion No. M-72644, claimant merely states that he "intend[s] to call [] an expert", and he does not request any substantive relief. In Motion No. M-74073, claimant moves pursuant to CPLR 3026 for sanctions against the State for failing, inter alia, to respond to discovery demands dated September 30, 2002, and for failing to comply with an Order of the Court entered January 6, 2004. In opposition to these motions, the State argues that Motion No. M-72644 should be dismissed because it fails to request relief, and Motion No. M-74073 should be dismissed because the State has complied with all discovery demands and, therefore, sanctions are not warranted. For the reasons to be stated, the Court denies both motions.

The claim was filed in February 2000, and arose while claimant was an inmate incarcerated at Wyoming Correctional Facility and Bare Hill Correctional Facility. The 72 page claim distilled to two causes of action: unjust confinement arising from claimant's placement in administrative segregation, and subsequent transfer to another correctional facility (first cause of action), and medical malpractice arising from surgery to his left wrist (second cause of action). After the State moved for summary judgment to dismiss the claim, the Court (Nemoyer, J.) dismissed the first cause of action. Next, claimant moved to compel responses to a discovery demand and to compel the State to perform a physical examination on him. The Court (McNamara, J.) denied both requests, finding that the State could not be compelled to provide discovery responses in the absence of a discovery demand, and the Court lacked jurisdiction to compel the State to perform a medical examination on claimant. In July 2003, claimant again moved to compel certain discovery responses and the Court (Hard, J.) determined that certain further responses were required.[2] Thereafter, upon the filing of a note of issue, a trial was scheduled for June 2007. Ultimately, the Court (Ferreira, J.) declined claimant's request to strike the note of issue, but, due to claimant's present incarceration, adjourned the trial without date pending claimant's release from State custody.

Concerning Motion No. 72644, claimant's submissions are styled more as a response to the State's demand to disclose expert witnesses pursuant to CPLR 3101(d). Given that the motion does not request any relief, it is dismissed.

Likewise, the Court denies Motion No. M-74073. Claimant argues that sanctions are appropriate because the State failed to provide additional responses as required by the Court, and appropriate responses to other discovery demands. The Court's Decision and Order required that the State provide additional responses to certain demands contained in claimant's demand for documents dated September 30, 2002. The State's submissions indicate that further responses were forwarded to claimant on April 1, 2004. Moreover, claimant filed a note of issue certifying that discovery was completed and, as such, the Court deems any further objection regarding inadequate responses waived. In so doing, the Court observes that, despite multiple conferences prior to filing the note of issue, claimant failed to advise the Court that the State's responses were inadequate.

Accordingly, claimant's motions are denied.

March 7, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed December 7, 2006;

2. Affirmation of James Blackwell sworn to November 14, 2006; Exhibits A-G annexed;

3. Affirmation of Dennis M. Acton filed March 1, 2007;

4. Reply filed April 16, 2007;

5. Notice of Motion filed October 4, 2007;

6. Affirmation of James Blackwell sworn to September 25, 2007; Exhibits A-B annexed;

7. Affidavit of Dennis M. Action filed October 26, 2007; Exhibits A-B annexed;

8. Reply filed November 20, 2007.

[1].The Court observes that some of the submissions are in the name of James Blackwell only and fail to list claimant Marjorie S. Vogel in the caption. It is noted that Marjorie S. Vogel continues to be a party to this action, inasmuch as, she has not discontinued her claims.
[2].Specifically, the Court's Decision and Order filed January 6, 2004, stated that further responses were required for demands 8-12 and 15, contained in claimant's demand for disclosure dated September 30, 2002.