Whitfield v State of New York

[*1] Whitfield v State of New York 2005 NY Slip Op 52366(U) [20 Misc 3d 1113(A)] [20 Misc 3d 1113(A)] Decided on February 28, 2005 Ct Cl Mignano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2005
Ct Cl

John Whitfield, Claimant,

against

The State of New York, Defendant.



107985



For Claimant:

John Whitfield, pro se

For Defendant:

Hon. Eliot Spitzer

Attorney General of the State of New York

By: Jeane L. Strickland Smith, Assistant Attorney General

Stephen J. Mignano, J.

This pro se claimant moves: 1) pursuant to CPLR 3042 (c), to preclude defendant from offering evidence at trial for those items for which a bill of particulars has been demanded but not served; 2) pursuant to CPLR 3215 (a), for a default judgment as the State has not submitted an amended answer to his amended claim; 3) an order directing that all his dental x-ray records be disclosed; and 4) an order directing defendant to pay costs and sanctions for willfully failing to comply with this Court's prior decision and order directing that all of his dental x-rays be disclosed. The State cross-moves to vacate the pending default judgment.

The claim alleges that on March 19, 1992 claimant had an impacted wisdom tooth extracted at Fishkill Correctional Facility. The claim further asserts that unknown to claimant, a piece of tooth was left in his gum during the surgery. On June 23, 2003, while confined at Sing Sing Correctional Facility, the tooth particle bored its way out of claimant's gum. During the 11 year and approximately three month span, claimant experienced constant discomfort, pain and suffering caused by the chip left in his gum.

In his affidavit in support of this motion, claimant asserts that he served a Demand for a [*2]Bill of Particulars upon defendant on August 5, 2003 (see Exhibit C attached to Motion) and a Supplemental Demand for a Bill of Particulars upon defendant on August 26, 2003 (see Exhibit D attached to Motion). Claimant avers that defendant has neither responded to either demand nor objected to either demand pursuant to CPLR 3042 (a). In its opposition papers, the State has not controverted claimant's allegations.

Pursuant to CPLR 3042 (a), claimant is entitled to a bill of particulars in this action. It is uncontroverted that a bill of particulars in response to claimant's demands has not been provided nor is any justification whatsoever offered for this failure. It is, therefore, ordered that defendant be precluded from the introduction of testimony at trial concerning matters and particulars which have been sought by claimant in his demand for a verified bill of particulars served August 5, 2003 and his supplemental demand for a bill of particulars served on August 26, 2003, unless defendant serves a verified bill of particulars in accordance with claimant's demands within thirty (30) days of the date of filing of this decision and order.

By decision and order dated November 18, 2003, I partially granted claimant's motion to amend his claim (see Whitfield v State of New York, Claim No. 107985, Motion No. M-67480, Mignano, J., filed December 3, 2003). Claimant was directed to serve and file his amended claim within forty (40) days of the filing of that decision and order. The State was directed to serve and file an answer to the amended claim within the time limitations set forth in § 206.7 (b) of the Uniform Rules for the Court of Claims. Claimant asserts in his affidavit that he served the amended claim upon the defendant on December 9, 2003, together with a copy of this Court's decision and order with Notice of Entry (see Affidavit in Support, Paragraph 14). Claimant further avers that defendant has not served an answer to the amended claim and seeks a default judgment pursuant to CPLR § 3215.

In her affirmation in support of the State's cross-motion to vacate the pending default judgment, the Assistant Attorney General avers that the amended claim was received by the Attorney General's office on December 15, 2003 in the same envelope with the Notice of Entry (Smith Affirmation, Paragraph 7). She further avers that claimant's correspondence and the Notice of Entry are stamped "received" but the amended claim is not. She further asserts:

"The fact that the claimant sent multiple documents in the same envelope made it more likely that a time-sensitive document, such as the Amended Verified Claim, would be overlooked when covered by other documents that are not time-sensitive. The Amended Verified Claim was mistakenly filed along with the Notice of Entry and left unanswered until the motion for default judgment was received. It is conceivable that this kind of oversight can occur based on the volume of mail received daily by the Attorney General's office" (Smith Affirmation, Paragraph 7).

It is apparent that the failure to answer the amended claim is the result of "law office failure" i.e., the failure of someone in the Attorney General's office to properly read the office mail. In Tewari v Tsoutsouras, 75 NY2d 1, 12-13, the Court of Appeals stated:

"[t]his excuse amounts to little more than law office failure... Nevertheless, specifically rejecting our holdings to the contrary (see, Barasch v Micucci, 49 NY2d 594; Eaton v Equitable Life Assur. Socy., 56 NY2d 900), the Legislature has held that upon a motion to extend the time to appear or plead (CPLR 3012) or to vacate a default (CPLR 5015 [a]), the court may excuse a delay or default resulting from "law office failure" (CPLR 2005). We see no reason to impose a [*3]more stringent requirement for the showing of "good cause" under CPLR 2004, particularly where, as here, there is no evidence that defendant was at all prejudiced by plaintiff's delay while plaintiff will be severely prejudiced if the motion is denied."

Here, there is no evidence that claimant will be prejudiced by defendant's delay, while the defendant will be severely prejudiced if the default is granted. Therefore, defendant is to serve and file its answer to the amended claim (Exhibit 9 attached to its Cross-Motion) within twenty (20) days of the date of filing of this decision and order. In view of this exercise of discretion, the cross-motion to vacate the pending default is denied as moot.

I now turn to the portion of the motion dealing with claimant's dental x-ray records. By decision and order dated January 16, 2004, I directed defendant to respond to claimant's request for disclosure of dental x-rays within thirty (30) days of the date of filing of that order (see Whitfield v State of New York, Claim No. 107985, Motion No. M-67638, Mignano, J., filed January 26, 2004). By subsequent motion, claimant asserted that he was not provided with all of his dental x-rays as ordered. By decision and order dated July 15, 2004, I stated that based upon the record then before the Court, I could not determine the circumstances in which the 1992 x-rays were allegedly destroyed. I adjourned the motion to September 22, 2004 at 9:30 a.m., at which time the parties were to appear with whatever evidence they possessed regarding the issues of the State's record retention, the destruction of the 1992 x-rays and proof that the x-rays taken in 1988 were turned over to claimant during the course of discovery. By a "so ordered" daily report dated September 14, 2004, I noted that defense counsel had forwarded the x-rays from April 20, 1992 to claimant on September 8, 2004 and cancelled the scheduled hearing. Claimant now asserts that the State provided only one x-ray dated April 20,1992 not multiple x-rays as the defendant stated in all previous correspondence to claimant and the Court (Affidavit in Support, Paragraph 22). Claimant asserts that the failure to turn over all the April 20, 1992 x-rays is a violation of this Court's order. The defendant has not responded to this portion of claimant's motion. The State is directed to provide the Court and claimant with an affidavit of a person with knowledge of the Department of Correctional Services' dental record keeping practices stating whether this is the only April 20, 1992 x-ray, if more exist, or if more existed in the past and have been destroyed for any reason. If more x-rays exist, they are to be made available to claimant, together with a detailed explanation, under oath, for the failure to previously provide them. The affidavit is to be provided within thirty (30) days of the date of filing of this decision and order.

Regarding claimant's request that sanctions be imposed pursuant to CPLR § 3126, the Court notes that this section provides that sanctions may be imposed if a party refuses to obey a disclosure order or willfully fails to disclose information which the Court finds should have been disclosed. Here, I am not yet convinced that the State willfully refused to obey my order and there is presently no conclusive evidence that the State willfully failed to respond. Therefore, the request for sanctions is denied at this time, without prejudice.

Stephen J. Mignano

Judge of the Court of Claims

White Plains, New York [*4]

February 28, 2005