New York State Court of Claims

New York State Court of Claims

RUIZ v. THE STATE OF NEW YORK, #2000-005-561, Claim No. 97708, Motion Nos. M-62142, M-62229


Claimant's motion seeking a lawyer under poor person status and motions for the production of documents and witnesses at the trial of this matter are granted to the extent noted and otherwise denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-62142, M-62229
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Eddie RuizPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Patricia M. Bordonaro, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 21, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On September 20, 2000, the following papers, numbered 1 to 7, were read on motions by Claimant seeking a lawyer under poor person status and certain witnesses (M-62142) and for the production of documents at the trial of this claim on October 4, 2000 (M-62229):

1, 2, 3 - Notice of Motion (M-62142) and supporting papers and exhibits

4, 5 - Notice of Motion (M-62229) and supporting papers

6 - Defendant's Response dated September 20, 2000

7 - Filed Papers: Claim

Upon the foregoing papers, these motions are granted to the extent noted and otherwise denied.

The underlying claim herein alleges the Defendant's negligence in its security procedures at the mess hall kitchen on or about April 30, 1997, and as a result thereof causing the Claimant to be assaulted and injured.

First, with respect to the application for poor person status, it really seeks the appointment of counsel to represent the Claimant, relief that is discretionary (Matter of Smiley, 36 NY2d 433: Stephens v State of New York, 93 Misc 2d 273). For litigants in private litigation, absent statutory provision therefor, as in the instant claim which seeks damages, inter alia, for Defendant's alleged negligence in security procedure, there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, supra)

Furthermore, Claimant has failed to demonstrate that he served a copy of Motion No. M-62142 upon the County Attorney as required by CPLR 1101(c), (see Bowman v State of New York, 229 AD2d 1024). Finally, in Motion No. M-56989 filed on May 11, 1998, I denied identical relief. This part of the motion is denied.

Claimant seeks 13 witnesses to be produced. I decline to direct the Superintendent or the Deputy Superintendent of Security as they are not alleged to have first hand knowledge of the issues for trial herein. Claimant also seeks Correction Officers Munez, Atkins, Foster, Vroman, an unnamed officer between B-Block and Mess Hall Post, as well as Sergeant Coventry. Each of these officers are sought to establish either the security taken at the inmate change of shift on and prior to the incident, and their individual whereabouts/assignments at the time of the incident. These requests are somewhat similar and it is not clear to me that the separate testimony of each would not be repetitive and/or bolstering. I note that the Defendant has indicated that it might call Correction Officer Harvey, who is another of the correction officers sought by Claimant. Accordingly, I will direct the Defendant to produce Correction Officer Harvey at the trial herein, without the necessity of subpoena. I will not direct the production of any other correction officer at this time , but will reconsider and order such other witnesses if the interests of justice dictate, after hearing testimony. Sgt. Vroman is also sought to verify written statements made to the Superintendent. If those documents are offered, the Defendant shall either concede their authenticity, or produce Sgt. Vroman to address that issue.

As for the four inmates sought, one is released (Inmate Martinez) and cannot be produced by the Defendant, and the other three, Inmates Ventura, LeBron and Alvarez, are incarcerated at other facilities, and would testify about security measures taken. Inmate LeBron, in an affidavit dated April 27, 1998, avers that he was not working on the day in question, thus the request for his testimony is denied. I have not located any affidavits in the Court's file from Inmates Ventura and Alvarez, although in Paragraph 11 of his affidavit Claimant asserts that he has affidavits from three of the four inmates whose testimony he seeks. Since I do not have those affidavits, I find that the prospective testimony, with respect to security measures taken, without supporting affidavits to be unpersuasive in directing their production. However, if at trial the affidavits are produced and/or in the interest of justice, I will review this determination.

With respect to Motion No. M-62229, Claimant apparently has sought certain documents contemporaneously by a discovery request sent on August 9, 2000 (the instant motion is dated August 18, 2000), and seeks the same by motion. This motion addresses the production of documents at trial for purposes of introduction into evidence, not for pre-trial discovery.

Claimant seeks in Paragraph 6 (A) security staffing file; 6(B) information and staffing unit reports, etc.; 6(C) special operations file, etc., and 6(D) contingency post report . . . . As to each of these, the Defendant states it is unable to determine what documents Claimant is requesting. Accordingly these requests are denied.

In Paragraph 6(E), Claimant seeks information with respect to Directives 4900 and 4910. The Defendant has supplied Directive 4910 directly to Claimant. A copy of Directive 4900 is submitted for my in-camera review because it is highly sensitive for security reasons. Claimant is aware, as he states in his motion, that some documents would not be available to him for review, but that he wanted me to have those available for consideration in making my decision. Directive 4900 fits within that category.

In Paragraph 6(F) Claimant requests some Eight Directives, including 4900 and 4910. The Defendant states that these directives contain, inter alia, security issues that should not be disclosed to inmates for security reasons. The Defendant shall have copies of the requested directives available for my in camera review, just like Directive 4900, should I wish to use the same in my deliberation.

Accordingly, the motion is granted to the extent noted and is otherwise denied.

September 21, 2000
Rochester, New York

Judge of the Court of Claims