Opinion
# 2015-015-105 Claim No. 125123 Motion No. M-87381
12-15-2015
CARLOS ABREU v. THE STATE OF NEW YORK
Carlos Abreu, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Thomas Trace, Esquire Assistant Attorney General
Synopsis
Motion to compel discovery was denied because it was not preceded by a notice for discovery.
Case information
| UID: | 2015-015-105 |
| Claimant(s): | CARLOS ABREU |
| Claimant short name: | ABREU |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125123 |
| Motion number(s): | M-87381 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Carlos Abreu, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas Trace, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 15, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for an Order granting his request for discovery.
Claimant, proceeding pro se, seeks damages for becoming infected with tuberculosis following his transfer to Central New York Psychiatric Center.
A necessary prerequisite to a motion to compel disclosure is the service of a notice for disclosure or other disclosure device (CPLR § 3102 [b]; CPLR 3124). A party has "not less than twenty days after service of the notice" to respond (CPLR 3120 [2]; see also CPLR 2103 [b] [2][five additional days may be added if service is by mail]). 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).
Insofar as defense counsel indicates that it did not receive claimant's discovery notice until August 14, 2015, it appears the notice was served simultaneously with the claimant's motion. Thus, claimant's motion to compel discovery is premature. Moreover, defendant indicates that it has timely responded to the discovery request. Accordingly, the claimant's motion is denied as both premature and unnecessary.
Claimant failed to submit a copy of his discovery notice to the Court in support of his motion.
December 15, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: 1. Notice of motion dated July 27, 2015; 2. Affirmation of Thomas Trace dated October 15, 2015.