New York State Court of Claims

New York State Court of Claims

BYRD v. THE STATE OF NEW YORK, #2008-037-013, Claim No. 111959, Motion No. M-74296


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:
Gary Byrd, Jr., Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. LonerganAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 7, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Claimant’s motion to strike Defendant’s answer:
1. Notice of motion and unsworn supporting affidavit[1] of pro se Claimant, Gary Byrd,

Jr., dated November 27, 2007, with annexed Exhibits;

2. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn to

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 the Court.

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.

April 7, 2008
Buffalo, New York

Judge of the Court of Claims

[1]. Because Claimant’s affidavit is unsworn, the Court need not consider it. The Court has, however, read the affidavit.