New York State Court of Claims

New York State Court of Claims
POPAL v. THE STATE OF NEW YORK, # 2021-028-555, Claim No. 135981, Motion No. M-96853

Synopsis

Case information

UID: 2021-028-555
Claimant(s): FARID POPAL
Claimant short name: POPAL
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 135981
Motion number(s): M-96853
Cross-motion number(s):
Judge: RICHARD E. SISE
Claimant's attorney: FARID POPAL, PRO SE
Defendant's attorney: HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Timothy J. Flynn
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 23, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read on Claimant's motion for summary judgment:

1. Notice of Motion filed June 4, 2021;

2. Affidavit of Farid Popal sworn to May 26, 2021 with Memorandum of Law and Exhibits A-D annexed;

3. Affidavit of Timothy J. Flynn filed September 30, 2021 with Exhibits A-C annexed;

4. Affidavit of Farid Popal filed October 4, 2021 with Exhibits A-B annexed.

Filed papers: Claim

Claimant has moved for summary judgment in this action brought to recover for damages alleged to have been suffered while an incarcerated person at Wende Correctional Facility. According to claimant he was required to work in the facility hospital where he was exposed to, and contracted, COVID -19. While the claim potentially raises a question as to the court's subject matter jurisdiction (see Valdez v City of New York, 18 NY3d 69, 75-78 [2011] [governmental immunity defense]; see also Blake v State of New York, 145 AD3d 1336, 1337 [3d Dept 2016], [administrative determinations reviewed in context of CPLR article 78 proceeding]), the motion is opposed by defendant on the ground that the application is premature because claimant has not provided appropriate responses to a Demand for a Bill of Particulars and a Demand for Discovery and Inspection.

Where relevant discovery has not been completed summary judgment may be premature

(Kowalak v Keystone Med. Servs. of New York, P.C., 197 AD3d 893 [4th Dept 2021]). Here, while claimant has provided a Bill of Particulars and responses to all of the items in the Demand for Discovery and Inspection, a number of responses refer defendant to the claim for the information demanded. Those references are to the claim in general and do not identify specific passages in the claim. As such, defendant is left to guess regarding the precise nature of the response to which it is entitled. In such circumstances, the motion for summary judgment is premature.

Accordingly, it is

ORDERED, that the motion is denied.

November 23, 2021

Albany, New York

RICHARD E. SISE

Judge of the Court of Claims