Opinion
# 2015-053-504 Claim No. 125531 Motion No. M-86372 Motion No. M-86712
08-12-2015
JAMES TOWNER v. STATE OF NEW YORK
JAMES TOWNER, PRO SE HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: GREGORY P. MILLER, ESQ. Assistant Attorney General
Synopsis
Claimant's motions to compel videotaped depositions, subpoena witnesses, compel the inspection of documents and answers to interrogatories, and for the appointment of a medical expert are denied.
Case information
| UID: | 2015-053-504 |
| Claimant(s): | JAMES TOWNER |
| Claimant short name: | TOWNER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the State of New York at the proper Defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125531 |
| Motion number(s): | M-86372, M-86712 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | JAMES TOWNER, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: GREGORY P. MILLER, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 12, 2015 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant James Towner, an inmate proceeding pro se, alleged in claim no. 125531 that he sustained personal injuries on December 11, 2014 when he slipped and fell in a "sinkhole" allegedly created by a fragmented and cracked floor located in the A-2 ASAT housing unit at Collins Correctional Facility (Collins) where he was incarcerated. Claimant now brings motion no. M-86372 and motion no. M-86712 to compel discovery. Defendant opposes both motions.
By way of background, Claimant filed motion no. M-86372 to compel discovery on February 17, 2015. This motion was assigned to the Hon. Michael E. Hudson and was scheduled to be fully submitted on May 6, 2015. Claimant, on May 6, 2015, filed motion no. M-86712 which was assigned to my calendar. Motion no. M-86712 consists of nine separate motions to compel further discovery. It was determined that both motions should be decided by the same Judge because the Claimant's motions overlap in some respects. As a result, motion no. M-86372 was reassigned to my calendar and both motion no. M-86372 and motion no. M-86712 were rescheduled to be fully submitted on July 8, 2015. Each of Claimant's motions will be addressed separately.
Motion No. M-86372 .
By motion no. M-86372, Claimant moves to compel videotaped depositions and to request a trial preference and a bifurcated trial. Each of these requests will be discussed separately.
Claimant's motion to compel videotaped depositions.
Claimant seeks to compel Defendant to produce Correction Officer (CO) Bridgers, CO Hammond and CO Singleton, plus Superintendent Michael Graziano for videotaped depositions. A party may move to compel discovery only after the opposing party has failed to respond or comply with a notice for such discovery (see CPLR Rule 3124). Here, there is no evidence that Claimant previously served upon Defendant a notice to conduct a deposition. In the absence of such a notice, Claimant's motion must be denied (see Claybourne v City of New York, 128 AD2d 667 [2d Dept 1987]; McCain v State of New York, UID No. 2012-049-010 [Ct Cl, Weinstein, J., Sept. 28, 2012]). Claimant was previously advised of the need to serve a notice before moving to compel discovery by the Hon. Judith A. Hard in Towner v State of New York, UID No. 2012-032-031 (Ct Cl, Hard, J., June 27, 2012).
CPLR Rules 3107 and 3113 set forth the requirements generally for notice and conducting a videotaped deposition. Furthermore, CPLR Rule 3116(d) and Uniform Rules for the Court of Claims §206.11(k) provide that the party requesting a recording of the deposition, herein the Claimant, shall bear the cost of the recording.
This and other Court of Claims decisions may be found on the Court's website at www.nycourts.gov.
Further, CPLR § 3101 (a) requires the disclosure of all relevant and necessary material. On a motion to compel discovery, it is incumbent on the party moving to compel to demonstrate that the discovery requested will result in the disclosure of relevant information or will lead to the discovery of relevant information (Gomez v State of New York, 106 AD3d 870 [2d Dept 2013]; Davis v Cornerstone Tel. Co., LLC, 78 AD3d 1263, 1264 [3d Dept 2010]). Claimant has failed to meet this burden. In fact, he makes no attempt to explain why he needs to depose three COs and an Acting Superintendent, or why their individual testimony would be relevant and necessary and not merely cumulative.
Finally, Claimant provides no reason why there should be videotaped depositions, as opposed to a less costly form of discovery such as an oral deposition or interrogatories especially where, as here, Claimant, as the party requesting discovery, must bear its costs. (see CPLR Rule 3116 [d] and Uniform Rules For The Court of Claims § 206.11 [k])
Claimant's motion to compel videotaped depositions is denied.
Claimant's motion for a bifurcated trial.
Claimant includes in his motion papers a reference to Uniform Rules For The Court of Claims § 206.19 entitled "Bifurcated Trials." Apparently, Claimant would like the issues of liability and damages bifurcated when this claim proceeds to trial. Counsel for the Defendant has indicated that he has no opposition. However, it is premature to consider Claimant's motion at this time. Claimant's motion is denied without prejudice so that Claimant may file and serve a subsequent motion for a bifurcated trial once this claim has been scheduled for trial.
Claimant's motion for a trial preference.
Defendant interprets Claimant's motion as requesting a trial preference. Pursuant to CPLR Rule 3403, a trial preference may be granted when, for example, the claimant reaches the age of 70 or is terminally ill. None of the circumstances for granting a trial preference appear to be present. Thus, insofar as Claimant's motion can be considered as requesting a trial preference, it must be denied.
Claimant also requests the Court to contact the attorney who allegedly agreed to represent him. No notice of appearance on behalf of the Claimant has been filed by an attorney, and in his subsequent motion, motion no. M-86712, Claimant seeks poor person status and the assignment of counsel, stating that his counsel has decided against representing him. Unless and until an attorney appears on behalf of Claimant as his attorney of record, the Court will continue to address all matters regarding this claim to Claimant, who is appearing pro se, and to the Assistant Attorney General assigned to represent the State.
Claimant's motions pursuant to CPLR § 1411 and § 4547
Finally, in his reply papers entitled "Responsive Motion To Defendant(s) counsel [sic] Opposition To Motion No. M-86372," Claimant includes two new motions: a motion filed pursuant to CPLR § 1411 and a motion filed pursuant to CPLR § 4547. The purpose of reply papers is to address arguments raised in opposition to the initial motion and not to raise new arguments in support of the motion or, as in this case, to introduce two new motions (Seefeldt v Johnson, 13 AD3d 1203 [4th Dept 2004]; N.A.S. Partnership v Kligerman, 271 AD2d 922 [3d Dept 2000]). As a result, I have not considered either of the two new motions raised for the first time in Claimant's reply papers.
In any event, it appears that Claimant may not be seeking any new relief by the motions introduced for the first time in his reply papers. The first new motion is made pursuant to CPLR § 1411, which states that damages for personal injuries may be diminished in the proportion to which the culpable conduct of the Claimant bears to the culpable conduct which caused the damages. The second new motion is made pursuant to CPLR § 4547, which states that an offer to compromise a claim may not be used to establish liability. Reading Claimant's new motions together, it appears that Claimant is trying to indicate that he is interested in discussing a settlement of his claim. If this is a correct assessment, then Claimant is encouraged to forward a written settlement demand to Assistant Attorney General Gregory P. Miller.
Based on the foregoing, Claimant's motion no. M-86372 is denied in its entirety.
Motion No. M-86712
Subsequent to filing motion no. M-86372, Claimant submitted several additional motions which were collectively filed as motion no. M-86712. Each of Claimant's requests will be addressed separately in the same order they are included in Claimant's motion papers.
Claimant's motion to subpoena witnesses.
Claimant, a pro se litigant, is not authorized to issue a subpoena (CPLR § 2302 [a]). When moving for the issuance of subpoenas, it is incumbent upon the Claimant to include with his motion papers the proposed subpoenas for the Court's review and signature. Claimant has failed to do so. For that reason alone, Claimant's motion for subpoenas is denied (Flemming v State of New York, UID No. 2013-039-391 [Ct Cl, Ferreira, J., Dec. 5, 2013]).
Subpoenas are normally issued to compel trial testimony. If this is Claimant's intention, then his motion is premature as no trial has been scheduled. Moreover, there is no explanation as to why depositions could not be obtained through pre-trial discovery. I will not, however, issue subpoenas or compel discovery when there has been no showing of a previous discovery demand.
Claimant's motion for subpoenas is denied.
Claimant's motion pursuant to CPLR § 3102 for inspection of documents.
Claimant moves pursuant to CPLR § 3102 for "Inspection Of Documents and Discovery." CPLR §3102 sets forth certain disclosure devices by which discovery may be obtained. There is no evidence, however, that Claimant ever served upon Defendant a notice to produce specific documents and that Defendant refused to respond or comply with such a notice. Thus, insofar as Claimant's motion can be interpreted as a motion to compel Defendant to produce certain documents, it must be denied (see CPLR Rule 3124). Claimant has previously been advised that he may not move to compel discovery before he has served notices for discovery which the Defendant has failed to comply with (see Towner v State of New York, UID No. 2012-032-031 [Ct Cl, Hard, J., June 27, 2012]).
In the interest of judicial economy, Defendant has prepared a response to the information requested by Claimant in his motion papers (see Defendant's exhibit E). If Claimant is not satisfied with this response or seeks additional documentation, he must first serve upon Defendant a notice for the production of documents pursuant to CPLR Rule 3120 and then if Defendant fails to respond to that written demand or Claimant is not satisfied with Defendant's response he may move to compel the production of documents pursuant to CPLR Rule 3124.
Claimant's motion to compel the production of documents is denied.
Claimant's motion pursuant to CPLR § 3102 for interrogatories.
Claimant filed a "New Motion" for interrogatories pursuant to CPLR § 3102. Here, the Claimant apparently seeks to compel the Defendant to respond to interrogatories specifically posed to acting superintendent Michael Graciano (sic) and CO Bridgers. Once again, Claimant may not compel Defendant to answer interrogatories that have not been served on Defendant. For this reason alone, Claimant's motion to compel interrogatories must be denied.
Further, in the interest of judicial economy, the Claimant's interrogatories as presently constituted are improper. Pursuant to CPLR § 3130, a party may serve interrogatories on another party. Interrogatories, such as the ones herein, directed towards nonparty employees of the State are improper (Martinez v State of New York, 111 AD3d 1445 [4th Dept 2013]; see also Rosa v State of New York, UID No. 2014-049-054 [Ct Cl, Weinstein, J., Oct. 14, 2014]). Thus, were Claimant merely to serve his present interrogatories on Defendant, they would be subject to a protective order, striking them (Martinez, supra at 1446).
In his affidavit in opposition, Assistant Attorney General Gregory P. Miller requests a protective order striking Claimant's interrogatories. Unfortunately, Defendant neglected to cross-move for a protective order. Accordingly, I may not grant Defendant's informal request at this time.
Claimant is cautioned that in an action, such as the present case, to recover damages for personal injury, a party is not "permitted to serve interrogatories on and conduct a deposition of the same party" (CPLR § 3130). Claimant should first decide which discovery mechanism, i.e. interrogatories or depositions, he will use, and then serve the appropriate notice on Defendant. And if Claimant chooses to proceed with interrogatories, consistent with CPLR §§ 3130 and 3131, they are to be directed to the Defendant, not a specific individual.
Claimant's motion to compel responses to interrogatories is denied.
Claimant's motion for appointment of a medical expert.
Claimant moves for the appointment of a medical expert presumably to serve without compensation or to be compensated by the State or by the county in which the matter will be tried as he is allegedly without financial means. Nothing in County Law § 722-c permits the Court to order a county to pay for an expert medical witness in a personal injury action (see Carter v County of Erie, 255 AD2d 984 [4th Dept 1998]; see also Crenshaw v State of New York, UID No. 2014-041-041 [Ct Cl, Milano, J., July 3, 2014]).
With respect to the State of New York, the Third Department in Gittens v State of New York, 175 AD2d 530, 530-531 [3d Dept 1991] stated that:
"There is no general provision which requires the State to pay the litigation expenses in claims brought against it. Court of Claims Act § 27 specifically provides that, except in instances not here present, "costs, witnesses' fees and disbursements shall not be taxed ... by the court to any party". Moreover, claimant is an inmate in a State correctional facility subject to a sentence of imprisonment. Civil Rights Law § 79 (3) and 79-a (3) specifically provide that the State shall not be liable for any expense of, or related to, inmate litigation and shall not be required to perform any services related thereto, particularly where, as here, poor person status has not been granted."
In Matter of Brown v State of New York, 6 AD3d 756 (3d Dept 2004), the Third Department reiterated these principles, noting that prison officials were not obligated to provide recording equipment for use by an inmate proceeding as a poor person in conducting depositions in a federal court action as "the state generally is not required to perform any services related to prison inmate litigation" (id., at 757). Further, claims for money damages for personal injuries are generally handled by private attorneys who typically advance litigation expenses, such as the cost of an expert witness.
In support of his motion, Claimant states that he has been granted poor person relief by this Court. Claimant is undoubtedly referring to the order of Acting Presiding Judge Richard E. Sise filed on January 27, 2015 which reduced Claimant's filing fee pursuant to CPLR § 1101 (f). This order did not grant Claimant poor person status which has now been denied by the present decision and order.
Accordingly, Claimant's motion for the appointment of a medical expert is denied.
Claimant's motion for poor person status and assignment of counsel.
Pursuant to CPLR § 1101 (c), if an action has been commenced, notice of a poor person motion is to be given to the parties and to the county attorney in the county in which the action is triable. There is no indication that Claimant served upon the county attorney a copy of his motion. Accordingly, Claimant's motion for poor person relief and for assignment of counsel is defective and must be denied (Senor v Behrle, 63 AD3d 1454 [3d Dept 2009]; Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]).
But even if the Claimant had complied with the service provision of CPLR § 1101 (c), Claimant's request for the assignment of counsel would be denied. The assignment of counsel is discretionary and is generally denied except in matters involving grievous forfeiture or loss of a fundamental right (Matter of Smiley, 36 NY2d 433 [1975]). Neither is involved herein. Claimant may still pursue and obtain counsel to represent him in this claim on a contingent fee basis.
Claimant's motion which seeks poor person relief and assignment of counsel is denied.
Claimant's motion pursuant to CPLR § 6213 for service of summons
Claimant moves for the issuance of a summons pursuant to CPLR § 6213. Article 62 of the CPLR deals with the attachment of a debt or property against which a money judgment may be enforced. No order of attachment has been issued. Nothing in Article 62 or more specifically in CPLR § 6213 is relevant to this claim.
Claimant's motion pursuant to CPLR § 6213 for service of summons is denied.
Claimant's motion pursuant to CPLR § 1101 for waiver of fee.
As there are no other fees associated with the prosecution of a claim in the Court of Claims, I have interpreted this portion of Claimant's motion as a motion for a waiver of the Court of Claims filing fee. By order filed January 27, 2015, Acting Presiding Judge Richard E. Sise reduced Claimant's filing fee from $50.00 to $25.00 pursuant to CPLR § 1101 (f). Thus,
Claimant's motion which seeks a waiver of the filing fee is denied.
Claimant's motion for default judgment
By comparing the motion papers filed with the Court to the motion papers served upon the Attorney General's Office (see Defendant's exhibit A), it appears that Defendant was not served with a copy of the last two motions attached to the papers filed with the Court. The two motions missing from Defendant's papers are: Claimant's "Motion Filed pursuant To Rule [sic] CPLR§ 3215 Default Judgment" and Claimant's "Motion Filed pursuant To § 2001 Mistake Omission, deFects [sic] etc." Since these last two motions were never served upon the Defendant, they must be denied. However, had they been properly served they would still be denied.
This presumption of non-service is further supported by the fact that Defendant did not respond to the last two motions attached to the papers filed with the Court and by Claimant's affidavit of service as attached to the papers filed which indicates the filing and service of 7 motions when the papers filed actually contain 9 motions, but the papers served (Defendant's exhibit A) contain only 7 motions.
Pursuant to CPLR § 3215, a Claimant may seek a default judgment against a Defendant who has failed to appear, plead or proceed to trial, or when a court orders dismissal. None of these circumstances apply. Claimant appears to be arguing however that the Hon. Michael E. Hudson in his letter dated April 14, 2015 ordered Defendant to respond to Claimant's initial motion, motion no. M-86372, by April 30, 2015. To the contrary, in his letter Judge Hudson granted Defendant's request for an extension of time to respond to Claimant's initial motion and requested that Defendant respond by April 30, 2015. Defendant's affirmation in opposition to motion no. M-86372 was dated and served on April 30, 2015, and was thus timely.
Claimant's motion for default judgment is denied.
Claimant's "Motion Filed pursuant To § 2001. Mistake Omission, deFects [sic] etc."
Claimant's motion pursuant to CPLR § 2001 must be denied as apparently it too was never served on the Defendant. However, even if it had been served, the motion would still be denied.
Pursuant to CPLR § 2001, a court may permit a mistake, omission, defect or irregularity in the filing process to be corrected upon such terms as may be just. Unfortunately, it is impossible to determine what mistake Claimant wants this Court to correct. Initially, Claimant asks the Court to allow him to serve a notice of summons or a summons pursuant to CPLR §§ 311 and 306-b. A summons is a document served with a complaint or alone when commencing an action in State Supreme Court. A summons is not utilized in the Court of Claims.
Moreover, CPLR § 2001 may not be used to correct a jurisdictional defect such as the failure to timely or properly serve a claim as the Court must first have jurisdiction to correct a defect under this rule (Matter of Vetrone v Mackin, 216 AD2d 839 [3d Dept 1995]; see also Miraglia v State of New York, UID No. 2014-049-047 [Ct Cl, Weinstein, J., Sept. 3, 2014]).
Claimant's motion pursuant to CPLR § 2001 is denied.
Based on the foregoing, Claimant's motion nos. M-86372 and M-86712 are denied in their entirety.
August 12, 2015
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following papers were read and considered by the Court:
Claimant's motion no. M-86372
1. Claimant's unsworn and undated motion no. M-86372 filed February 17, 2015; 2. Claimant's undated memorandum of law submitted pursuant to section 206.24 of the Uniform Rules for the Court of Claims, received February 17, 2015; 3. Affirmation in Opposition of Assistant Attorney Gregory P. Miller affirmed April 30, 2015 and filed May 1, 2015; 4. Claimant's undated "Responsive Motion To Defendant(s) counsel [sic] Opposition to Motion No. M-86372" filed May 11, 2015.
Pursuant to CPLR § 2214 (a) and sections 206.8 and 206.9 of the Uniform Rules for the Court of Claims, a motion consists of a notice of motion, a supporting affidavit sworn to by a notary public, supporting exhibits and an affidavit of service. Because Claimant failed to include a notice of motion or a supporting affidavit, I need not address his motion. I have, however, read and considered his papers. Claimant is cautioned in the future to submit all necessary papers in the event he files any further motions.
Section 206.24 of the Uniform Rules for the Court of Claims governs claims submitted on an agreed statement of facts. Claim no. 125531 is not such a claim and there are no agreed upon facts. I have read Claimant's "Memorandum of Law."
see footnote no. 5.
Claimant's Motion No. M-86712
1. Claimant's unsworn and undated motion no. M-86712 filed May 6, 2015; 2. Affirmation in Opposition of Assistant Attorney General Gregory P. Miller affirmed June 25, 2015 and filed June 26, 2015.