New York State Court of Claims

New York State Court of Claims

MITCHELL v. STATE OF NEW YORK, #2009-042-509, Claim No. 111757, Motion No. M-76338


Synopsis


This motion is brought before the court on defendant’s motion seeking to dismiss the second cause of action (wrongful conviction) of the claim pursuant to CPLR Rule 3211 (a) (2) and (7) for lack of subject matter jurisdiction and for failure to state a cause of action, or alternatively summary judgment pursuant to CPLR Rule 3211 (c) and CPLR Rule 3212 dismissing the aforementioned cause of action as without merit. Defendant also seeks an order compelling claimant to comply with disclosure demands pursuant to the court’s scheduling order. The motion is unopposed. The court finds that the underlying legal issues raised by claimant were previously addressed by Judge Collins in Mitchell v State of New York, UID No. 2005-015-025, Claim No. 110085, Motion Nos. M-69741, M-69742, M-70182 and CM-69959, and because claimant has offered no opposition to defendant’s requested relief, defendant’s motion to dismiss claimant’s second cause of action is granted. Defendant’s motion to compel disclosure is also granted.

Case Information

UID:
2009-042-509
Claimant(s):
WILLIAM MITCHELL
Claimant short name:
MITCHELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111757
Motion number(s):
M-76338
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
WILLIAM MITCHELL, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New Y ork
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 27, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on defendant’s motion:

  1. Notice of Motion, filed February 23, 2009
  2. Affirmation of Joel L. Marmelstein, Esq., dated February 23, 2009
  3. Exhibits A - E, annexed to the moving papers

This matter comes before the court on defendant’s motion seeking to dismiss the second cause of action of the claim pursuant to CPLR Rule 3211 (a) (2) and (7) for lack of subject matter jurisdiction and for failure to state a cause of action; alternatively, defendant seeks summary judgment, pursuant to CPLR Rule 3211 (c) and CPLR Rule 3212, dismissing the aforementioned cause of action as without merit. Additionally, defendant seeks an order compelling the claimant to comply with disclosure demands and the court’s Scheduling Order, dated August 18, 2008. The motion is unopposed.

The underlying claim consists of two claims, or causes of action. The first claim is for dental malpractice and the second claim appears, at its essence to be one for wrongful conviction. As defendant notes, the underlying legal issues raised by claimant in this action were previously addressed by Judge Collins in Mitchell v State of New York, UID No. 2005-015-025, Claim No. 110085, Motion Nos. M-69741, M-69742, M-70183, CM-69959, June 27, 2005, Collins, J.

For the same reasoning used by Judge Collins in the aforementioned decision, which addressed the issues raised by claimant’s second cause of action in this matter, and because claimant has offered no opposition to defendant’s requested relief, defendant’s motion to dismiss claimant’s “second cause of action” (all matters other than the alleged dental malpractice) is granted.

Turning to defendant’s request for an order to compel disclosure with respect to the dental malpractice portion of the claim, defendant’s counsel states that on January 12, 2006 defendant served claimant with a Demand for Bill of Particulars and a variety of Discovery Demands. On August 5, 2008 claimant appeared at a scheduling conference where disclosure deadlines were set. Following the conference the court issued a Preliminary Conference Scheduling Order, dated August 18, 2008, which ordered that claimant was to serve the Bill of Particulars and discovery responses on or before December 31, 2008. Defense counsel affirms that claimant has neither objected to nor answered the defendant’s disclosure demands.

Defendant’s motion to dismiss the second cause of action is granted. Defendant’s motion to compel disclosure is granted insofar as claimant shall have 60 days from the date of filing of this decision and order to serve a verified bill of particulars and to provide responses to defendant’s Discovery Demands or claimant will be precluded from offering evidence at trial of any facts or materials demanded in Defendant’s Demand for Bill of Particulars and Discovery Demands.


May 27, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims