Opinion
# 2017-040-055 Claim No. 129253 Motion No. M-90075
05-19-2017
ANDRE DOLBERRY v. THE STATE OF NEW YORK
Andre Dolberry, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Christina Calabrese, Esq., AAG
Synopsis
Pro se Claimant's motion to compel production of documents denied.
Case information
| UID: | 2017-040-055 |
| Claimant(s): | ANDRE DOLBERRY |
| Claimant short name: | DOLBERRY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129253 |
| Motion number(s): | M-90075 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Andre Dolberry, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Christina Calabrese, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 19, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion to compel is denied.
This pro se Claim, which was filed in the office of the Clerk of the Court on February 1, 2017, alleges that, on August 18, 2016, while incarcerated at Franklin Correctional Facility, Claimant was assaulted by four inmates as a result of the State's failure to properly supervise them. The Claim also asserts that Claimant lost some of his personal property when, after the assault, he was transferred to the Special Housing Unit.
In his Notice of Motion, Claimant seeks an order directing Defendant to produce documents for discovery and inspection. Defendant opposes the motion on the ground that Claimant has not served a discovery demand upon the State relating to this Claim (Affirmation in Opposition of Christina Calabrese, Esq., ¶ 4). Claimant failed to set forth that he served a discovery demand upon Defendant.
CPLR 3120(1) provides, in pertinent part, that, after commencement of an action, a party may serve upon another party a notice to produce designated documents or any other things in the possession or control of the party being served. However, the party seeking discovery has to serve a discovery demand upon the other party and designate the items it is seeking. Here, Claimant has failed to establish he has complied with these requirements. In addition, CPLR 3124 allows a party seeking disclosure to make a motion to compel that disclosure, only if the other party fails to comply with a discovery demand. Here, there is no evidence that Defendant failed to comply with a discovery demand made by Claimant.
The Motion to compel the State to provide discovery, therefore, is denied.
May 19, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion to compel: Papers Numbered Notice of Motion and Statement in Support 1 Affirmation in Opposition 2 Claimant's Reply 3 Papers Filed: Claim, Answer