Discovery motion was denied for failure to serve a demand.
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|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|
|See also (multicaptioned case)|
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: