Opinion
# 2016-044-543 Claim No. 122085 Motion No. M-88438
07-13-2016
CHARLES WATSON v. THE STATE OF NEW YORK
CHARLES WATSON, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Court denied inmate claimant's motion to compel a response to interrogatories directed toward a non-party witness as improper and issued protective order re same; court also denied motion for assignment of counse.
Case information
| UID: | 2016-044-543 |
| Claimant(s): | CHARLES WATSON |
| Claimant short name: | WATSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122085 |
| Motion number(s): | M-88438 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | CHARLES WATSON, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 13, 2016 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a self-represented litigant, filed this claim to recover damages allegedly suffered as a result of two instances of wrongful confinement, denial of recreation, and medical malpractice and/or medical negligence concerning a wrist injury, all of which occurred while he was in custody at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant now moves to compel disclosure and for assignment of counsel. Defendant opposes the motion. Claimant replies.
At the time he filed this claim, claimant was in the custody of the Department of Corrections and Community Supervision (DOCCS). However, claimant has since been released from DOCCS custody and is currently an inmate in the custody of the Federal Bureau of Prisons. Claimant also indicates that he is now known as Jean Bernier and the Court notes that he has signed his affidavit in that manner.
Claimant's previous motion for partial summary judgment was denied (Watson v State of New York, UID No. 2013-044-506 [Ct Cl, Schaewe, J., Apr. 29, 2013], affd 125 AD3d 1064 [3d Dept 2015]).
That portion of claimant's motion which seeks to compel responses to certain interrogatories pertains to his first cause of action for wrongful confinement. In order to address this motion, some background information is necessary. On July 26, 2012, claimant was charged with a violation of Prison Disciplinary Rule 101.20 (sex offense) which allegedly occurred the previous day (Watson, UID No. 2013-044-506). Specifically, claimant was accused of "call[ing] [ORC Sweet's] name & ask[ing] if [she] had recived [sic] the letter he wrote about his quarterly review. At that point [ORC Sweet] stopped in the doorway between the end of I-blk & the SHU corridor. When [she] looked back into [claimant's] cell, he was masturbating & still trying to talk to [her]" (Watson, UID No. 2013-044-506 at 2 [internal quotation marks omitted]). After a Tier III disciplinary hearing, claimant was found guilty of the charge and sentenced to (among other things) six months confinement in a Special Housing Unit (SHU) (id.). Claimant asserts that his confinement in SHU was wrongful because the Hearing Officer refused claimant's request to call a certain witness, Ms. Rasheena, during the hearing (id.). It is claimant's contention that Rasheena was walking alongside ORC Sweet when they passed by claimant's cell and would have direct knowledge about whether he was engaged in the conduct charged in the misbehavior report (id. at 3).
In this motion to compel, claimant contends that Rasheena was the chaperone of a group which was touring Elmira on the date of the incident. Claimant asserts that because defendant allowed Rasheena to lead the tour group into the facility, she was acting as an agent of the State and the interrogatories are properly directed to her. Conversely, defendant contends that these interrogatories are improper as they are directed to a non-party, non-employee witness.
Pursuant to CPLR 3130, "after commencement of an action, any party may serve upon any other party written interrogatories." CPLR 3133 (b) provides that properly drawn interrogatories are to be answered by "the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information." "The clear intent is that the responding party, when not a natural person, decides who responds on its behalf" (Aviles v State of New York, UID No. 2006-036-564 [Ct Cl, Schweitzer, J., Oct. 23, 2006]; see also vanBergen v Long Beach Med. Ctr., 277 AD2d 374 [2d Dept 2000] [where the plaintiff was "not entitled to designate a specific person to be deposed on behalf of the (defendant) hospital"]).
Claimant may properly serve these interrogatories on the State, as it is the defendant in this matter (see CPLR 3130). However, regardless of whether Rasheena was an employee or an agent of the State, claimant cannot dictate the individual who shall respond, as that matter is within defendant's province (see e.g. JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 292 [3d Dept 1984]). Accordingly, claimant's motion to compel is denied. Further, because Rasheena is not a party to this action and the interrogatories directed to her are improper, a protective order is hereby issued prohibiting the use of these interrogatories and defendant is not required to respond (CPLR 3103 [a]; Martinez v State of New York, 111 AD3d 1445, 1446 [4th Dept 2013], lv dismissed 23 NY3d 956 [2014]).
In any event, claimant has failed to provide any evidence that Rasheena was an employee or that defendant otherwise authorized her to act on its behalf and that she consented to do so, which would be necessary to the formation of an agency relationship (Time Warner City Cable v Adelphi Univ., 27 AD3d 551, 552, [2d Dept 2006]; Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [2d Dept 1993]; see also Paterno v Strimling, 107 AD3d 1233 [3d Dept 2013]).
The Court will next address that portion of claimant's motion seeking assignment of counsel. Claimant agues that because he does not have access to New York Statutes and case law while in custody in a Federal Prison located in Pennsylvania, counsel should be appointed to represent him. An application for assignment of counsel is typically considered within the context of a motion to proceed as a poor person, and the Court will treat claimant's request in that manner (see e.g. Pettus v State of New York, UID No. 2006-028-579 [Ct Cl, Sise, P.J., July 27, 2006]). There is no constitutional or statutory authority for the assignment or compensation of counsel under these circumstances (Matter of Smiley, 36 NY2d 433, 437-438 [1975]). Rather, the assignment of counsel in civil matters is a matter of judicial discretion and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (Hines v State of New York, UID No. 2005-028-534 [Ct Cl, Sise, P.J., June 21, 2005]). The allegations made in this claim are for damages caused by claimant's allegedly wrongful confinement in SHU and are of the nature that would typically be handled by an attorney on a contingent fee basis. The Court finds that this claim does not warrant the exercise of its discretion to assign counsel (see Smiley, 36 NY2d at 438).
Moreover, claimant's failure to file proof of service of his motion on the appropriate County Attorney's Office is also fatal to his request. CPLR 1101 (c) requires that "if an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the [C]ounty [A]ttorney in the county in which the action is triable." Notice to the County Attorney is required because certain costs such as filing or transcription fees may be a county charge (CPLR 1102). Failure to comply with the notice requirement renders an application defective (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016 [Ct Cl 1979]), and warrants denial in and of itself.
In conclusion, claimant's interrogatories directed toward a non-party witness are improper and the Court hereby sua sponte issues a protective order so that defendant is not required to answer them. Further, this claim for damages based upon claimant's allegedly wrongful confinement in SHU does not involve a grievous forfeiture or the loss of a fundamental right and assignment of counsel is not warranted. Accordingly, claimant's motion to compel disclosure and for assignment of counsel is denied in its entirety.
July 13, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion: 1) Notice of Motion filed on April 15, 2016; Affidavit of Jean Bernier, sworn to on April 11, 2016, and attachments. 2) Affirmation in Opposition of Douglas H. Squire, Assistant Attorney General, dated May 2, 2016, and attached exhibits. 3) Claimant's Reply dated May 9, 2016. Filed papers: Claim filed on December 3, 2012; Verified Answer filed on January 4, 2013.