New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2009-038-501, Claim No. 112655, Motion No. M-75570


Synopsis


Claimant’s motion for a default judgment denied. No showing that defendant’s failure to timely respond to interrogatories was willful, contumacious or in bad faith.

Case Information

UID:
2009-038-501
Claimant(s):
ABDUL-JABBOR MALIK
Claimant short name:
MALIK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112655
Motion number(s):
M-75570
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
ABDUL-JABBOR MALIK, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an individual incarcerated in a State correctional facility, filed this claim on August 18, 2006 alleging that agents of defendant committed medical malpractice when, after blood and urine tests were taken from claimant on April 13, 2006, they failed to medically respond to results that indicated high cholesterol and the presence of bacteria. Claimant contends that in early July 2008 – nearly two years after the claim was filed – he mailed a set of interrogatories to defendant, and that defendant failed to respond thereto within thirty days. Claimant now moves for a default judgment pursuant to CPLR 3215(a). Defendant opposes the motion. As there is a “general policy favoring resolution of actions on their merits” (Osterhoudt v Wal-Mart Stores, 273 AD2d 673, 675 [3d Dept 2000], the drastic remedy of a default judgment against a party who has not complied with discovery demands may be imposed only when the movant demonstrates that the party against whom that severe sanction is sought has acted willfully, contumaciously or in bad faith (see CPLR 3126 [3]; Kinge v State of New York, 302 AD2d 667 [3d Dept 2003]; Cafferty v Thomas, Collison & Place, 282 AD2d 959, 960-961 [3d Dept 2001]; see also Gokey v DeCicco, 24 AD3d 860 [3d Dept 2005]). Here, claimant has not made such a showing. Defendant’s counsel avers that the failure to timely respond to the interrogatories was due to the inability of the individual to whom the interrogatories were directed to timely respond, and that once claimant denied defendant’s initial request for an extension of time, no further extension was requested (see King Affirmation, ¶ 4). The Court notes that claimant offers no reason for his conceded refusal to allow defendant an additional thirty days within which to respond to the interrogatories. Defense counsel avers that he will forward the responses to claimant as soon as they are received. While counsel’s affirmation certainly allows the inference that defendant might exercise greater diligence in responding to claimant’s interrogatories, nothing before the Court on the motion suggests that defendant’s failure to timely respond to the interrogatories was willful, contumacious or in bad faith, and thus, claimant’s motion for a default judgment against defendant must be denied as without merit. Accordingly, it is

ORDERED, that Motion No. M-75570 is DENIED.

January 8, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim, filed August 18, 2006;

(2) Notice of Motion for Default Judgment, dated September 18, 2008;

(3) “Affirmation” of Abdul-Jabbor Malik, dated September 18, 2008, with exhibit;

(4) Affirmation of Glenn C. King, AAG, in Response to Claimant’s Motion for Default

Judgment, dated October 29, 2008.