New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2009-015-162, Claim No. 115629, Motion No. M-76135


Synopsis


Motion for discovery was denied for failure to first serve a demand pursuant to CPLR 3101 and 3120.

Case Information

UID:
2009-015-162
Claimant(s):
TYRONE WALKER
Claimant short name:
WALKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115629
Motion number(s):
M-76135
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Tyrone Walker
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 28, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for an order to obtain certain discovery in anticipation of trial. The appropriate procedural device to obtain discovery in the first instance is the service of a demand for those items which are "material and necessary in the prosecution or defense of an action" (CPLR 3101[a]; 3120). Only in the event the defendant fails to timely or adequately respond to the demand is a motion to compel discovery pursuant to CPLR 3124 an appropriate device. In this regard CPLR 3124 states: "If a person fails to respond to or comply with any request, notice, interrogatory, demand . . . the party seeking disclosure may move to compel compliance or a response." Claimant has failed to establish that any such demand has been served on the defendant, let alone that the defendant has failed to comply therewith.

Accordingly, claimant's motion to obtain discovery is denied.


April 28, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion filed January 5, 2009;
  2. Affidavit of Tyrone Walker sworn to November 18, 2008;
  3. Affirmation of Paul F. Cagino dated January 23, 2009