New York State Court of Claims

New York State Court of Claims
DAVIS v. THE STATE OF NEW YORK, # 2010-015-104, Claim No. 114479, Motion No. M-77214

Synopsis

Discovery motion was denied for failure to serve a demand.

Case information

UID: 2010-015-104
Claimant(s): SAMUEL DAVIS
Claimant short name: DAVIS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114479
Motion number(s): M-77214
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Samuel Davis, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 12, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an inmate proceeding pro se, moves to compel certain discovery. Defendant has opposed the motion indicating that no demand for discovery was served. Notably, the claimant's motion is unsupported by the demand to which he seeks to compel a response.

A necessary prerequisite to a motion to compel discovery is the service of a demand therefor. 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 must first serve a demand for discovery of items material and necessary to the prosecution of his claim (see CPLR 3101) and, in the event the defendant fails to timely or adequately respond, he may thereafter move to compel discovery pursuant to CPLR 3124. Claimant's motion is denied.

January 12, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated September 18, 2009;
  2. Affidavit of Samuel Davis sworn to September 17, 2009;
  3. Brief in support of motion by Samuel Davis dated September 18, 2009;
  4. Affirmation of Michael C. Rizzo dated October 13, 2009.