New York State Court of Claims

New York State Court of Claims
JOHNSON v. THE STATE OF NEW YORK, # 2009-040-093, Claim No. 116883, Motion No. M-77193

Synopsis

CPLR 3124 & 3126 motion to compel discovery responses denied.

Case information

UID: 2009-040-093
Claimant(s): JOHNATHAN JOHNSON 89 A 1042
Claimant short name: JOHNSON
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116883
Motion number(s): M-77193
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Johnathan Johnson, Pro Se
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael C. Rizzo, Esq., AAG
Third-party defendant's attorney:
Signature date: December 2, 2009
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, pro se Claimant's motion to compel discovery responses pursuant to CPLR 3124 and 3126 is denied.

The Claim, which was filed with the Clerk of the Court on May 20, 2009, alleges that, on April 9 and April 17, 2009, while incarcerated at Upstate Correctional Facility (Upstate) located in Malone, New York, Claimant was denied medications for sinus, stomach and skin problems by a facility nurse.

The Claim was served upon Defendant on April 27, 2009, according to Claimant's affidavit of service, which is attached to the filed Claim(1) . The State filed a Verified Answer on June 5, 2009. Thereafter, on or about July 6, 2009, Claimant served upon Defendant "Claimant's Disclosure Requests for Production of Documents" (filed with the Clerk of the Court on July 24, 2009)(2) . The State served a response to the Disclosure Request on July 27, 2009. In that response, the State indicated, in response to Demands 2, 3, 4 and 5, that "a search is presently being undertaken for any document responsive to the demand" and "will be provided under separate cover if such record exists, if it is relevant to this claim and not deemed confidential" (Response to Claimant's Disclosure Request for Production of Documents). Claimant now seeks to compel Defendant to respond to Disclosure Demands 2, 3, 4 and 5 on the grounds the information sought is material and necessary to the prosecution of his Claim.

According to the Affidavit of Service attached to the motion papers, Claimant served his motion upon the State on September 11, 2009(3) . The State's Supplemental Response to Claimant's Disclosure Request for Production of Documents was mailed to Claimant on September 17, 2009 and filed with the Clerk of the Court on the same date. That Response and the Second Supplemental Response to Claimant's Disclosure Request for Production of Documents mailed on September 30, 2009, provide responses to Claimant's Demands 2, 3, 4 and 5. The Court has reviewed the State's responses to the four Demands and finds them reasonable and proper. Therefore, as the State has provided Claimant responses to his Requests for Production of Documents, Claimant's motion to compel responses is denied as moot.

December 2, 2009

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's motion to compel:

Papers Numbered

Notice of Motion, Affidavit in Support 1

Affirmation in Opposition 2

Filed Papers: Claim, Answer, Claimant's Disclosure Requests for Production of Documents, Response to Claimant's Disclosure Request for Production of Documents, Supplemental Response to Claimant's Disclosure Request for Production of Documents, Second Supplemental Response to Claimant's Disclosure Request for Production of Documents


1. The Court notes that, on April 23, 2009, Claimant appeared before a notary public and swore to the truth of the information contained in the affidavit of service. Therefore, he stated on April 23, 2009 that he served Defendant on April 27, 2009, a date that was still four days in the future.

2. Again, the Court notes that, on July 1, 2009, Claimant appeared before a notary public and swore to the truth of the information contained in the affidavit of service. He stated on July 1, 2009 that he served Defendant and sent a copy to the Court on July 6, 2009, a date that was still five days in the future.

3. The Court notes yet again, that the document is notarized prior to the mailing taking place. The document was notarized on September 8, 2009, attesting to a mailing that occurred on September 11, 2009.