Opinion
# 2014-038-559 Claim No. 121465 Motion No. M-85519
12-18-2014
DEMERIS TOLBERT v. THE STATE OF NEW YORK
DEMERIS TOLBERT, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General
Synopsis
Motion by incarcerated claimant for court appointed referee to conduct discovery denied. Purpose of referee is to supervise discovery when special circumstances so require, not to conduct discovery on behalf of a party.
Case information
| UID: | 2014-038-559 |
| Claimant(s): | DEMERIS TOLBERT |
| Claimant short name: | TOLBERT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121465 |
| Motion number(s): | M-85519 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DEMERIS TOLBERT, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 18, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that defendant's agents failed to provide him with certain braces and other devices that had been prescribed for his lower extremities. Claimant moves pursuant to CPLR 4001 for the appointment of a referee to assist in disclosure. He contends that due to his incarceration, a referee is needed to conduct depositions, draft and serve interrogatories, and obtain affidavits on his behalf, and he asserts, without elaboration, that he will suffer irreparable harm and extreme prejudice if a referee is not appointed. Defendant opposes the motion on the grounds that defendant has responded to claimant's discovery demands, and that claimant has not demonstrated any circumstance that would warrant the appointment of a referee.
As an initial matter, claimant appears to be requesting the appointment of a referee to assist him in obtaining discovery. This is a misapprehension of the purpose of a referee, whose function is to resolve disputes and other difficult issues during the course of discovery. To the extent that claimant is seeking free legal counsel or assistance to pursue discovery, the Court has already denied claimant's previous application for the appointment of counsel and experts at public expense (see Tolbert v State of New York, UID No. 2013-038-548 [Ct Cl, DeBow, J., Aug. 1, 2013]).
A special referee may be appointed to supervise disclosure pursuant to CPLR §§ 4001 and 3104, but a court's discretionary power to do so "should be exercised sparingly and its exercise is not warranted in the absence of special circumstances" (Di Giovanni v Pepsico, Inc, 120 AD2d 413, 414 [1st Dept 1986]). Examples of "special circumstances" include where one party is proceeding pro se and the parties are having difficulty cooperating (see Capoccia v Brognano, 126 AD2d 323 [3d Dept 1987]), where there is hostility and lack of cooperation between the parties (see Lowitt v Burton I. Korelitz, M.D., P.C., 152 AD2d 506 [1st Dept 1989]), or where the matter being litigated is extremely technical and would benefit from a referee who possesses technical expertise (see Whalen v Kawasaki Motors Corp., 175 AD2d 667, 669 [4th Dept 1991]). Claimant has not demonstrated a lack of cooperation between the parties or that the subject matter is extremely technical, nor any other special circumstance or reason why a referee is needed to supervise disclosure. Thus, the Court will not exercise its discretion to appoint a referee. Accordingly, it is
ORDERED, that motion No. M-85519 is DENIED.
December 18, 2014
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim number 121465, filed June 25, 2012;
(2) Notice of Motion for Court Appointed Referee Pursuant to CPLR 4001, dated August 7, 2014;
(3) Affidavit in Support of Demeris Tolbert, sworn to August 7, 2014;
(4) Affirmation in Opposition of Anthony Rotondi, AAG, dated August 26, 2014;
(5) Tolbert v State of New York, UID No. 2013-038-548 (Ct Cl, DeBow, J., Aug. 1, 2013).