Opinion
# 2020-038-526 Claim No. 133980 Motion No. M-95099
02-27-2020
LUIS VEGA v. THE STATE OF NEW YORK
LUIS VEGA, Pro se No Appearance
Synopsis
Claimant's motion to compel discovery responses denied as premature. Claimant failed to demonstrate that discovery demands were served on defendant prior to making motion.
Case information
| UID: | 2020-038-526 |
| Claimant(s): | LUIS VEGA |
| Claimant short name: | VEGA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133980 |
| Motion number(s): | M-95099 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | LUIS VEGA, Pro se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | February 27, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries allegedly sustained when he was assaulted in the recreation yard at Green Haven Correctional Facility on July 27, 2019. Claimant now moves to compel responses to certain discovery demands. Defendant has not responded to the motion.
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 a 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 has submitted a bare, unsupported notice of motion stating merely that this motion is "for the following: 1. DEMAND FOR DISCOVERY 2. DEMAND FOR ADMISSION" (Notice of Motion, dated Dec. 29, 2019). Although a demand for discovery and a demand for admission, both dated December 28, 2019, are attached to the notice of motion, there is no evidence, by way of affidavit in support of the motion or affidavit of service, that these demands were served on defendant prior to making the instant motion. Claimant's motion thus must be denied as premature inasmuch as a party must first make a discovery demand or request prior to filing any discovery motion, and then, if compliance with the demand or request is incomplete or inadequate, seek court intervention.
Claimant has attached to the notice of motion an unsworn "Reply Affidavit" dated December 29, 2019, which reflects that it is made in opposition to defendant's Verified Answer and not in support of the instant discovery motion. To the extent claimant purports in the "Reply Affidavit" to "move[] to strike" certain portions of defendant's Verified Answer "by way of a demand for discovery and admission," that relief will not be granted inasmuch as claimant must specifically seek such relief in his notice of motion, and support it with a sworn affidavit, which was lacking in this case.
Accordingly, it is
ORDERED, that claimant's motion number M-95099 is DENIED.
February 27, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 133980, filed November 15, 2019; 2. Verified Answer, filed December 6, 2019; 3. Notice of Motion, dated December 29, 2019; 4. Claimant Demand for Discovery, dated December 28, 2019; 5. Claimant Demand for Admission, dated December 28, 2019; 6. Unsworn Reply Affidavit of Luis Vega, dated December 29, 2019, with Exhibits A-G; 7. Unsworn Affidavit of Service of Luis Vega, dated December 29, 2019.