New York State Court of Claims

New York State Court of Claims

COLLIC v. THE STATE OF NEW YORK, #2009-015-184, Claim No. 115090, Motion No. M-76370


Synopsis


Motion to compel discovery was denied where no demand was served.

Case Information

UID:
2009-015-184
Claimant(s):
DAVID H.J. COLLIC
Claimant short name:
COLLIC
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115090
Motion number(s):
M-76370
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
David H.J. Collic, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for the production of certain discovery. Defense counsel opposed the motion stating that no demand for discovery was served and that the items sought are improper and overly broad. 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 previously moved to compel discovery prior to serving a demand therefor and by Order dated November 12, 2008 was specifically advised that "[c]laimant must first serve such a demand and, in the event the defendant fails to timely or adequately respond, thereafter move to compel discovery pursuant to CPLR 3124" (Collic v State of New York, [UID #2008-015-081, Claim No. 115090, Motion No. M-75168] November 12, 2008, Collins, J.) Claimant is warned that repeated motions of this nature may warrant sanctions for frivolous conduct in the future (22 NYCRR § 206.20; 22 NYCRR Part 130). Claimant should serve the defendant with a notice for discovery of items material and necessary to the prosecution of his claim (see CPLR 3101). Such a demand is not a motion and should not be denominated as such. Nor should it be addressed to the Court. Only following a demand for discovery, expiration of the applicable period in which to respond to claimant's demand, and a good faith attempt to resolve the matter without the necessity for a motion, may the claimant move to compel discovery pursuant to CPLR 3124.

Claimant's motion is denied.



June 26, 2009
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Motion for discovery of David Collic dated February 25, 2009;
  2. Affirmation of Paul F. Cagino dated March 12, 2009 with exhibit.