Opinion
# 2015-053-523 Claim No. 125817 Motion No. M-87330
12-21-2015
TROY McRAE v. STATE OF NEW YORK
TROY McRAE, PRO SE HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General
Synopsis
Inmate's motion to compel Defendant to respond to notice to admit and to produce certain documents denied as there is no evidence that the discovery notice at issue had ever been served.
Case information
| UID: | 2015-053-523 |
| Claimant(s): | TROY McRAE |
| Claimant short name: | McRAE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125817 |
| Motion number(s): | M-87330 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | TROY McRAE, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2015 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Troy McRae, an inmate proceeding pro se, alleges in claim no. 125817 that the Defendant failed to provide adequate dental care while he was incarcerated at Collins Correctional Facility (Collins). Presently before the Court is Claimant's motion no. M-87330 to compel Defendant to respond to Claimant's notice to admit and to produce certain documents, and Claimant's application, filed with the claim, to proceed as a poor person and for the appointment of counsel. Defendant has failed to oppose or otherwise respond to Claimant's motions.
Claimant moves pursuant to CPLR 3123 and CPLR 3124 to compel responses to a notice to admit and a notice to produce certain documents. A motion to compel discovery under CPLR 3124 may not be made unless movant has first served discovery demands and the time to respond to these demands has expired (Guillory v State of New York, UID No. 2014-049-050 [Ct Cl, Weinstein, J., Sept. 10, 2014]). Moreover, CPLR 3124 does not authorize a motion to compel a response to a notice to admit. The penalty for unreasonably failing to respond to a proper notice to admit is governed by CPLR 3123 (c) and is only considered during or following a trial, not by pre-trial motion. Accordingly, Claimant's motion to compel responses to a notice to admit must be denied.
Claimant attaches to his motion papers a copy of a notice to admit and a notice for production both dated May 30, 2015. Absent from either notice is an affidavit of service attesting to service of either notice upon the Attorney General's office. In his self styled "Affidavit in Support of Motion to Compel," Claimant states that the Defendant has refused to comply with his "request for disclosure." Nowhere does he state that either notice was served upon the Attorney General's Office. When there is no evidence that the discovery notice at issue has been served, movant may not compel disclosure (Lashway v State of New York, UID No. 2013-049-027 [Ct Cl, Weinstein, J., June 3, 2013]).
Motion practice in the Court of Claims is governed by CPLR 2214 and by sections 206.8 and 206.9 of the Uniform Rules for the Court of Claims. These rules state that motion papers shall consist of a notice of motion, a supporting affidavit (a statement sworn to in front of a notary public) and an affidavit of service. Neither the "Affidavit in Support" nor the "Affidavit of Service" attached to Claimant's motion is properly notarized or sworn to (see Smith v State of New York, UID No. 2014-038-528 [Ct Cl, DeBow, J., June 11, 2014]). Rather, both simply contain a statement that Claimant affirms "under penalty of perjury" that the foregoing is "true and correct." Presumably, Claimant is relying upon 28 USCA § 1746, a federal statute which permits a declaration similar to that utilized by Claimant as a substitute for an affidavit that may be required by federal law. This federal procedure does not apply to matters in state court (Id.).
Under New York State practice, only non-party attorneys, physicians, osteopaths or dentists may substitute an affirmation stating that matters are true under penalty of perjury in lieu of an affidavit (see CPLR 2106 [a]). Claimant's status as a party precludes his use of an affirmation even if he could establish that he was an individual otherwise entitled to submit an affirmation. Thus, Claimant's motion would have to be denied as he has failed to comply with the requirements that a motion be supported by an affidavit and contain an affidavit of service (Id.). The Court may not simply overlook these procedural failings where, as here, Defendant has failed to respond to Claimant's discovery demands or to Claimant's motion to compel. In fact, this Court has a real concern whether Defendant was ever served by Claimant with the notices for discovery of this motion.
Attached to Claimant's motion papers as filed were two other motions relating to claim no. 125067, another one of Claimant's numerous claims, plus an original Inmate Claim Form that has no apparent relevance to the present claim or to claim no. 125067.
Based on the foregoing, Claimant's motion no. M-87330 to compel discovery is denied in its entirety.
Finally, upon reviewing the file, it appears that Claimant attached to his claim as filed an application to proceed as a poor person and a request for assignment of counsel. This application must also be denied. An application to proceed as a poor person pursuant to CPLR 1101 and a request for the appointment of counsel pursuant to CPLR 1102 (a), must be served on the attorney for the county in which the matter is triable (CPLR 1101 [c]). While the affidavit attached to the claim in support of Claimant's motion to proceed as a poor person indicates that a copy will be provided to the Erie County Attorney's Office, the affidavit of service attached to the claim fails to indicate service upon the appropriate county attorney. As a result, Claimant's motion is defective and must be denied on those grounds (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]).
The affidavit in support of Claimant's motion to proceed as a poor person and for the appointment of counsel was sworn to on October 16, 2014, approximately five months before March 18, 2015, the date claim no. 125817 was filed. Claimant apparently has used this affidavit for the filing of one or more prior motions and attempted to use it again for the present motion. In fact, an almost identical affidavit sworn to on October 16, 2014 was attached to Claimant's claim no. 125892 filed on April 2, 2015. Since this affidavit was obviously prepared for a different claim, it cannot be used to establish that the appropriate county attorney was served as required by CPLR 1101 (c) with respect to the present claim.
In the event Claimant had complied with CPLR 1101 (c) by serving the appropriate county attorney, his motion would still have to be denied. By order filed March 26, 2015, Acting Presiding Judge Richard E. Sise reduced Claimant's filing fee from $50.00 to $20.00 pursuant to CPLR 1101 (f). Inasmuch as there are no other fees or costs associated with the prosecution of this claim, Claimant's motion to proceed as a poor person would have to be denied.
Claimant's motion for assignment of counsel would similarly have to be denied. Although CPLR 1102 grants to the Court discretion to assign an attorney, the Court of Appeals has previously ruled that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation and such a request is generally denied except in cases involving loss of liberty or grievous forfeiture (Matter of Smiley, 36 NY2d 433 [1975]). Claimant has failed to establish that his claim is sufficiently complex or that it involves such fundamental rights that the Court would be justified in appointing counsel to serve without compensation (Id, at 437-438; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]).
Claimant's request to proceed as a poor person and for the assignment of counsel is denied.
December 21, 2015
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following papers were read by the Court: 1. Claimant's notice of motion no. M-87330 and unsworn "affidavit" of Troy McRae with annexed exhibits. 2. Claimant's Affidavit in support of application pursuant to CPLR 1101 (d) sworn to October 16, 2015.