2. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn
February 4, 2008, with annexed Exhibits A-C.
Filed papers: Claim filed February 8, 2006; Answer filed March 7, 2006;
Claimant’s Request for Production of Documents filed April 28, 2006;
Defendant’s Response to Claimant’s Discovery Demands filed May 2,
2006; Defendant’s Supplemental Response to Claimant’s Request for
Production of Documents filed June 1, 2007.
This is an action for personal injuries arising out of an incident which
occurred in August of 2005 when the Claimant, a pro se inmate, allegedly slipped
and fell in the unit mess hall at Gowanda Correctional Facility (Gowanda) where
he was incarcerated. In April of 2006, Claimant served Defendant with a request
for the production of documents. In response, Defendant produced certain
documents and generally objected to Claimant’s demands as being overly
broad and burdensome. Claimant eventually moved the Court for an order
compelling Defendant to provide further responses. In its decision and order
(Byrd v State of New York, Ct Cl, February 7, 2007, Moriarty, J., claim
no. 111959, motion no. M-72647, UID # 2007-037-010) (copy annexed to
Claimant’s motion papers), the Court granted Claimant’s discovery
motion in part and denied it in part. After limiting the scope of demands
numbered 1 and 2 in Claimant’s April, 2006 demand, the Court ordered
Defendant to produce documents that fell within the limited time period. No
further response to the remaining items demanded by the Claimant were ordered by
Claimant then moved for default judgment alleging that Defendant failed to
comply with the Court’s February, 2007 decision and order (motion no.
M-73883). In his opposing affidavit, Assistant Attorney General Lonergan stated
that a supplemental response to Claimant’s demands had been forwarded to
Claimant at Gowanda and that Claimant had refused to accept service by failing
to appear for distribution of legal mail on two separate occasions. After
Claimant failed on two occasions to pick up his mail, it was marked refused and
returned to the Buffalo Regional Office of the Attorney General. Indeed, a
supplemental response to Claimant’s demands was filed with the Court on
June 1, 2007. Upon receipt of Defendant’s motion papers, Claimant withdrew
his motion for default judgment (M-73883) before the Court could address the
motion. Claimant now moves to strike Defendant’s answer alleging that he
has still not received a copy of Defendant’s supplemental responses to his
April, 2006 request for production of documents.
It appears from Assistant Attorney General Lonergan’s February 4, 2008
affidavit submitted in opposition to the present motion, that he attempted to
re-serve Claimant with Defendant’s initial response and its supplemental
response to Claimant’s request for production of documents in October of
2007, around the time when Claimant withdrew his prior motion (M-73883).
Unfortunately, it further appears that in early November of 2007, Claimant was
transferred from Gowanda to Mid-Orange Correctional Facility (Mid-Orange).
Because Defendant has made several good faith efforts to comply with the
Court’s February 7, 2007 decision and order, Claimant’s present
motion to strike Defendant’s answer is denied in its entirety. The Court
requests, but will not order, Defendant to make one further attempt to re-serve
its supplemental response on Claimant at Mid-Orange.
Based on the foregoing, it is hereby
ORDERED, that Claimant’s motion M-74296 is denied in its entirety.