New York State Court of Claims

New York State Court of Claims

KING v. STATE OF NEW YORK, #2008-039-068, Claim No. 114076, Motion No. M-74309


Synopsis


Claimant’s motion to compel disclosure denied. The presumption behind CPLR 3124 is that a demand for discovery must be made before movant may seek an order from the Court compelling discovery. Here, claimant did not offer any proof to show that he served a demand for discovery upon defendant.

Case Information

UID:
2008-039-068
Claimant(s):
WALTER KING, 90-T-5480
Claimant short name:
KING
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114076
Motion number(s):
M-74309
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Walter King, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 3, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves the Court for an order compelling defendant to produce various discovery materials in connection with his claim for alleged medical malpractice and medical negligence. Defendant opposes the motion on the ground that claimant has not served any discovery demands upon defendant.

CPLR 3124 provides that “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.” The presumption being that a demand for discovery must be made before movant may seek an order from the Court compelling discovery (see Ramos v State of New York, UID # 2007-030-572, Claim No. 112096, M-73896, Scuccimarra, J., October 23, 2007). In fact, the Uniform Rules for the Court of Claims requires that demands for disclosure be filed with the Clerk (see 22 NYCRR 206.5 [c]). Here, claimant has not offered sufficient proof in support of his motion to compel defendant to provide him with discovery materials. Claimant did not offer any proof to show that he served a demand for discovery upon defendant. Moreover, in opposition to the motion, defendant has responded to the demands as set forth therein. In the future, the Court suggests that claimant communicate with defendant regarding any discovery that he may wish to obtain from defendant before making additional motions to compel disclosure.

Accordingly, it is hereby ordered that M-74309 is denied.


March 3, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion dated December 5, 2007;
  2. Affidavit in Support of Motion by Walter King sworn to on December 5, 2007; and
  3. Affirmation in Opposition to Motion to Compel by Belinda A. Wagner, AAG, dated December 14, 2007 with exhibits.