Claimant's motion to compel discovery was denied where motion was not supported by a copy of the discovery demand and defendant opposed the motion on the ground it was not served.
|Claimant short name:||WEEMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Kevin Weems, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 10, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves to compel discovery pursuant to CPLR 3124. Defendant opposes the motion on the ground that it was not served with a demand for discovery and inspection.
Claimant's previous motions for the production of discovery (Motion No. M-77169) and to compel the depositions of certain witnesses (Motion No. M-77168) were denied by Decision and Order of this Court dated January 15, 2010 ( Weems v State of New York, Ct Cl, January 15, 2010 [Claim No. 115306, Motion Nos. M-77168; M-77169], Collins, J. unreported). In denying the motion requesting the production of discovery, the Court noted that the claimant failed to support the motion with a copy of the discovery demand to which a response was sought, stating "[a] necessary prerequisite to a motion to compel discovery is the service of a demand" (see CPLR 3124). Claimant makes the same mistake on the instant motion, which was served before the Decision and Order on the prior motion was issued. Claimant should first serve a demand for discovery of those items which are material and necessary in the prosecution of the action (CPLR 3101 [a]; 3120) and then move to compel a response if necessary.
Accordingly, claimant's motion is denied.
March 10, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: