New York State Court of Claims

New York State Court of Claims

CABNESS v. THE STATE OF NEW YORK, #2009-030-505, Claim Nos. 112987, 113215, Motion No. M-75967


Synopsis


Motion by claimant for sanctions denied. Defendant has provided - albeit tardily - disclosure. No showing that delay orchestrated in bad faith, or wilful or contumacious failure to disclose

Case Information

UID:
2009-030-505
Claimant(s):
CAMAR CABNESS
Claimant short name:
CABNESS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112987, 113215
Motion number(s):
M-75967
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
FRANZBLAU DRATCH, P.C.By: BRIAN M. DRATCH, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
January 30, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion to strike


defendant’s answer, for an order of preclusion, and for sanctions:

1,2 Notice of Motion; Affirmation in Support by Brian M. Dratch, attorney for claimant and attached exhibits

  1. Affirmation in Opposition to Motion to Compel Discovery and Strike Answer by Jeane L. Strickland Smith, and attached papers
4-7 Filed papers: Claim Number 112987, Answer; Claim Number 113215, AnswerCamar Cabness alleges in claim number 112987 that defendant’s agents at Fishkill Correctional Facility negligently failed to maintain the basketball courts there, resulting in his injury on June 19, 2006 due to dangerous “ditches and bubbles” on the court. In claim number 113215, Mr. Cabness alleges that defendant thereafter failed to provide him with adequate and timely medical care for his injuries. The parties stipulated to a consolidation of the claims for discovery and trial purposes, and such stipulation was so ordered by the court.

Claimant’s motion seeks sanctions and other relief for a failure to disclose; defendant has responded by disclosing - where possible - the material sought. While it is disconcerting that the discovery requested in August 2008, subsequent requests by claimant for a response, as well as the court’s letter dated November 24, 2008 suggesting such response in lieu of motion practice, were ignored by defendant, at this juncture, defendant has responded, and offers the statement that defendant has “made good faith efforts to comply with claimant’s reasonable discovery demands.” [Affirmation in Opposition to Motion to Compel Discovery & Strike Answer by Jeane L. Strickland Smith, Assistant Attorney General, ¶3]. In the response furnished, no objections to any requests by claimant are raised by defendant making such lack of response puzzling. Additionally, the documents now provided appear to have been in the possession of counsel for some time and, although not all documents are certified, some contain certifications from the record keepers dated November 15, 2006 and April 21, 2008, for example, and other documents are stamped “received” by the Attorney General’s Office on February 21, 2007.

Nonetheless, the court will not grant the motion to strike the answer or for an order of preclusion or other sanction for failure to disclose at this time, given the present response to the document requests. Civil Practice Law and Rules §3126; 22 NYCRR §130-1.1. The court finds there is an insufficient showing that any delays were orchestrated in bad faith or that such failure to disclose was a wilful or contumacious. The delay was relatively brief, and the discovery now provided is fairly comprehensive, coupled with defendant’s representation that additional information will be provided as and if it becomes available. Although the initial lack of response by defendant is disconcerting, and is noted for any future failure to timely respond to reasonable requests, the conduct does not rise to the level where the imposition of the sanctions suggested by claimant are warranted.

Based on the foregoing, the motion [M-75967] is in all respects denied.

January 30, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims