New York State Court of Claims

New York State Court of Claims
BENSON v. THE STATE OF NEW YORK, # 2018-015-183, Claim No. 131815, Motion No. M-92890


Absent service of a notice for discovery, motion to compel was denied.

Case information

UID: 2018-015-183
Claimant(s): ANTHONY W. BENSON
Claimant short name: BENSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131815
Motion number(s): M-92890
Cross-motion number(s):
Claimant's attorney: Anthony W. Benson, Pro Se
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 21, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, proceeding pro se, moves to compel disclosure pursuant to CPLR 3120.

Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for wrongful confinement to a "disciplinary unit designated B-2" at Great Meadow Correctional Facility (GMCF) from June 19, 2018 through July 13, 2018 (claim, 2, 3, 10). Claimant alleges that although the confinement was "purportedly based upon the issuance of an unspecified Tier 3 disciplinary ticket, . . . no disciplinary ticket had ever issued and [c]laimant, who has a history of serious mental illness, was never assessed by OMH staff during his confinement as required by law" (Claim, 3).

In support of the instant motion to compel discovery, claimant submits an affidavit in which he appears to request certain documents from the defendant for the first time (see Benson affidavit, 6 [a] - 6 [g]). In opposition to the motion, defense counsel states "To date, defendant has not received any discovery demands from claimant, other than the Demand for Discovery which was attached to claimant's motion" (affirmation of Douglas R. Kemp, 3).

A necessary prerequisite to a motion to compel disclosure is the service of a disclosure notice (CPLR 3102 [a], [b]). A motion to compel compliance or a response is then appropriate "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand" (CPLR 3124). Here, claimant's motion to compel defendant's compliance with discovery is premature. Claimant must first serve defense counsel with a demand for discovery and, in the event of its failure to respond appropriately, he may move to compel compliance pursuant to CPLR 3124.

Accordingly, claimant's motion is denied.

December 21, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of motion, dated September 20, 2018;
  2. Affidavit of Anthony W. Benson, sworn to September 20, 2018;
  3. Affirmation of Douglas R. Kemp, Esq., dated October 16, 2018.