Claimant's motion to compel discovery denied as premature due to lack of demonstration that discovery demand that was the subject of the motion was previously served upon defendant. Discovery demand deemed served, and defendant directed to respond thereto in accordance with applicable rules and procedures.
|Claimant short name:||GAJADHAR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||WINSTON GAJADHAR, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Jeane L. Strickland Smith,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 19, 2019|
|See also (multicaptioned case)|
Claimant pro se, an individual incarcerated in a State correctional facility, is seeking monetary compensation for damages he suffered as a result of defendant's alleged failure to provide adequate medical attention. He moves for an order compelling defendant to respond to discovery demands. Defendant opposes the motion on the ground that the Attorney General was never served with a discovery demand.
A motion for a court order compelling disclosure is authorized only "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or [discovery] order" (CPLR 3124). If claimant does not demonstrate that the motion has been preceded by service of a discovery demand or request and that the party served has failed to adequately comply with the discovery request, the motion to compel will be denied as premature (see Keitt v State of New York, UID No. 2018-038-532 [Ct Cl, DeBow, J., Apr. 6, 2018]; Dorcinvil v State of New York, UID No. 2018-038-564 [Ct Cl, DeBow, J., June 27, 2018]; Perez v State of New York, UID No. 2016-018-729 [Ct Cl, Fitzpatrick, J., July 20, 2016]).
Claimant's motion is supported by a 15-page document that sets forth enumerated paragraphs containing definitions, instructions, and 14 demands for production of certain documents (see Notice of Motion to Compel Discovery and Inspection Pursuant to CPLR 3120 ["PLAINTIFF'S [sic] SECOND SET OF REQUEST FOR PRODUCTION [Nos. 1 -14]"). He avers in support of the motion that "[o]n June 2018 [sic]" he "submitted a request for discovery pursuant to CPLR 3120 and further directed the defendants to produce at that time all books, papers, records, documents relating to the injury in violation of Milburn Consent Decree for this claim" (Gajadhar Affidavit, ¶ 4). In opposition, defendant assert that it was not served with the discovery demand that is the subject of this motion (see Strickland Smith Affirmation, ¶¶ 4-5). In reply to defendant's opposition to his motion, claimant reiterates that he served "this" discovery demand upon defendants in "June 2018" (see Gajadhar Reply Affidavit, ¶ 7; Exhibit A), but the discovery demand that was filed with the Clerk of the Court of Claims on June 29, 2018 and that is appended to claimant's reply affidavit is not the same, in either substance or form, to the demand that is the subject of this motion to compel.(1)
Inasmuch as claimant has not demonstrated that he previously served upon the Attorney General the discovery demand that is submitted with his motion to compel, the motion will be denied as premature. However, the 15-page Notice of Motion to Compel Discovery and Inspection Pursuant to CPLR 3120 that was served upon defendant as part of this motion shall be deemed as a document demand served under CPLR 3120, and defendant shall respond thereto as if it were served directly by claimant. Accordingly, it is
ORDERED, that claimant's motion is DENIED, and it is further
ORDERED, that the document entitled "PLAINTIFF'S SECOND SET OF REQUEST FOR PRODUCTION (NOS. 1-14), etc., shall be deemed a demand for production and inspection or copying of documents, to which defendant shall respond in accordance with applicable rules and procedures.
April 19, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Amended Claim, filed September 4, 2018;
(2) Notice of Motion to Compel Discovery and Inspection C.P.L.R. 3124,
dated November 26, 2018;
(3) Notice of Motion to Compel Discovery and Inspection Pursuant to CPLR 3120
[Plaintiff's Second Set of Request for Production (Nos. 1 -14), etc.] undated;
(4) Affidavit of Winston Gajadhar in Support of Motion to Compel Discovery and Inspection,
sworn to November 26, 2018;
(5) Affidavit of Service of Winston Gajadhar, sworn to November 26, 2018;
(6) Affirmation of Jeane L. Strickland Smith, AAG, in Opposition to Motion to Compel
Discovery, dated January 9, 2019, with Exhibits A-C;
(7) Reply Affidavit of Winston Gajadhar in Support of Motion to Compel Discovery and
Inspection, sworn to January 24, 2019, with Exhibits A-C;
(8) Notice for Claimant's First Request for Discovery and Inspection (Pursuant to CPLR 3120), filed June 29, 2018;
(9) Affidavit of Service (of Privilege correspondence for month of June) of Winston Gajadhar,
Sworn to February 22, 2019.
1. To the extent that claimant seeks to prove that he served that discovery request in June 2018, such proof is of no value on this motion, where the document that was purportedly served is other than the document that is the subject of the motion.