Opinion
# 2016-041-016 Claim No. 123678 Motion No. M-88006
03-30-2016
MARK ALAN LAPIERREv. THE STATE OF NEW YORK
MARK ALAN LAPIERRE Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General
Synopsis
Claimant's motion to treat his prior motion to compel production of the Department of Correction and Community Services Inspector General case file relating to the incident underlying the excessive force/assault claim to a motion for penalties and sanctions is denied; claimant's motion for a default judgment and to strike defendant's affirmative defenses is denied.
Case information
| UID: | 2016-041-016 |
| Claimant(s): | MARK ALAN LAPIERRE |
| Claimant short name: | LAPIERRE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123678 |
| Motion number(s): | M-88006 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | MARK ALAN LAPIERRE Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 30, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for an order: Granting him a default judgment; treating his prior motion (M-86837) "as if it were made under CPLR 3126" and imposing sanctions for willful non-disclosure; and, dismissing defendant's affirmative defenses.
Defendant opposes the claimant's motion.
The claim alleges that claimant was assaulted by defendant's correction officers at Clinton Correctional Facility in December of 2012.
The Court will first consider claimant's request that the Court treat claimant's prior motion (M-86837) as having been made pursuant to CPLR 3126 seeking sanctions rather than pursuant to CPLR 3124 to compel disclosure. The claimant's prior motion (M-86837) requested production of the Department of Corrections and Community Supervision Inspector General Investigative Report and File (IG File) related to the incident underlying the claim. The claimant's prior motion was granted in part and denied in part by the Court's Decision and Order (filed March 4, 2016) which ordered defendant to disclose to claimant certain materials from the IG File and further found that claimant could obtain disclosure of any other relevant material in the IG File through ordinary disclosure and deposition requests.
CPLR 3126 provides as follows:
"If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party."
The Court finds that claimant has failed to set forth any basis, in either his prior motion (M-86837) or in his present application, sufficient for the Court to consider imposing penalties and sanctions against defendant for willful non-disclosure.
In Mary Imogene Bassett Hosp. v Cannon Design, Inc. (84 AD3d 1543, 1544 [3d Dept 2011]), the court recently reminded that the "drastic remedy" of striking a pleading should be reserved to those situations where the offending conduct is willful, contumacious, or in bad faith:
"While a court may order dismissal of an action or a claim therein as a penalty for noncompliance with disclosure demands or orders (see CPLR 3126 [3]), this type of drastic remedy is reserved for situations where a party's failure to comply is 'willful, contumacious, or in bad faith' (Harris v City of New York, 211 AD2d 663, 664 [1995])."
This is so because "[s]trong public policy . . . favors the resolution of cases on the merits" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2d Dept 2010]).
Claimant's motion for a default judgment, based upon the Freedom of Information Law requests to the State of New York unrelated legally to this action and also based upon the same purported "delay" and "willful failure to disclose" on defendant's part underlying claimant's request for "Penalties and Sanctions," is denied.
Claimant also asks the Court to dismiss defendant's affirmative defenses. CPLR 3211 (b) provides as follows: "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit."
Greco v Christoffersen (70 AD3d 769, 771 [2d Dept 2010]), explains that:
"[W]hen moving to dismiss or strike an affirmative defense, the [claimant] bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law' (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). In reviewing a motion to dismiss an affirmative defense, [the] Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference."
The law requires that the allegations contained in the challenged defenses "must be accepted as true on a motion to strike" and where the "claimant failed to conclusively show that the defenses lacked merit" the motion is properly denied (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]).
Claimant has not identified any particular defense of defendant which claimant believes should be dismissed nor has claimant offered any admissible alleged facts showing that any of defendant's defenses is "without merit as a matter of law" (Vita, 34 AD3d at 559).
Claimant's motion to strike the defenses in defendant's answer is denied.
Claimant's motion, in its entirety, is denied.
March 30, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims Papers considered: 1. Claimant's Notice of Motion, filed January 27, 2016; 2. Affidavit of Mark A. LaPierre, sworn to January 7, 2016, and annexed exhibits; 3. Affirmation in Opposition of Michael T. Krenrich, dated February 18, 2016, and annexed exhibits; 4. Claimant's "Affirmation in Reply," dated February 21, 2016.