New York State Court of Claims

New York State Court of Claims

ROBBINS v. STATE OF NEW YORK, #2000-006-962, Claim No. 102325, Motion No. M-62803


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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
By: Reynolds E. Hahn, Esq.Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 9, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant's motion for an order of this court seeking multiple forms of relief including poor person status, disclosure from the defendant of various items, permission to take the oral deposition of witnesses, and permission to take a deposition of witnesses on written questions. In deciding this motion the court has read and reviewed the following papers:
  1. Notice of motion dated November 29, 2000 and filed November 29, 2000.
  1. Claimant's affidavits sworn to November 26, 2000 in support of the relief sought.
  1. Claimant's notices to take oral depositions and his notices to take depositions on written questions.
  1. Claimant's notice for disclosure.
  1. The affirmation of Reynolds E. Hahn, Esq., Assistant Attorney General, dated December 8, 2000 and filed December 12, 2000, along with exhibits attached thereto in opposition to the motion.
  1. Claim verified April 17, 2000 and filed April 20, 2000.
  1. Order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed May 16, 2000.

This claim arose on February 27, 2000 at approximately 6:15 p.m. while claimant was an inmate at Orleans Correctional Facility. Claimant states he was leaving the mess hall, and proceeding on the walkway to his housing unit. According to claimant, as he left the mess hall he noticed several correctional facility officers standing and talking in the mess hall vestibule. Claimant alleges that, as he proceeded on the walkway, he noticed two inmates walking about 15 feet behind him. Claimant states he passed a correction officers booth, and did not see a correction officer in it. When claimant arrived at the entrance to his housing unit and before he opened the door, he states his forehead was grabbed from behind by an inmate, and the right side of his face was slashed. According to claimant, he turned around, and was able to see his assailant. Claimant states he observed his assailant give a sharp instrument to another inmate, and then saw both inmates leave the area. Claimant was unable to identify this other inmate. Later, claimant viewed various inmate photographs, and identified the inmate who slashed him. In his claim, claimant states his assailant's name was "not available" to him. Therefore, although claimant could identify his assailant by photograph, it does not appear the assailant was known to claimant prior to this incident. The only allegation of negligence in the claim is that correction officers, knowing the walkway between the mess hall and claimant's dormitory was a dangerous area, did not adequately staff and patrol the area in order to prevent inmate upon inmate assaults. As a result of this negligence, claimant maintains he was assaulted by another inmate, and suffered a serious injury to his face. It is noteworthy claimant has not alleged the defendant was negligent in failing to protect him from another inmate with known propensities for violent conduct, or from an inmate who was an enemy of claimant, of which the defendant was aware, and did not take adequate precautions.

The court will first address claimant's motion for an order of this court granting him poor person status and for the assignment of counsel pursuant to CPLR §§ 1101 and 1102. Claimant states that he is unable to pay the cost, fees and expenses necessary to pursue his claim. The issue of the cost and fees associated with filing a claim in the Court of Claims has already been resolved by the order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed May 16, 2000. In that order, claimant's filing fee was set at $15.00 with no initial payment of the reduced fee required.

The court has reviewed claimant's affidavit to proceed as a poor person and for the assignment of counsel and finds it to be without merit. The claimant states that he is unable to pay the costs and fees associated with the prosecution of this action, but prosecution of this matter in this court does not require the claimant to pay any costs or fees. The only costs associated with serving a notice of intention to file claim and filing and serving a claim consist of postage and, perhaps, photocopying expenses. In his statement and petition, the claimant alleges that he has neither income nor any property of value. However, the court is aware that the defendant provides five free first-class stamps to inmates weekly and will advance an inmate up to $20 for legal mail postage, if the inmate has insufficient funds (7 NYCRR 720.8[b][c]; 721.4[a]; 721.5[a]). Based upon these regulations, an inmate should have adequate means to serve his/her notice of intention to file claim and/or serve and file his/her claim and any other papers related to the claim in compliance with the Court of Claims Act. In the event an inmate is unable to afford the cost of photocopying, it would not be unreasonable for an inmate to transcribe by hand multiple copies of his/her notice of intention to file claim and/or claim and other related papers for the purpose of filing and serving same.

Claimant has not set forth any specific facts as to the attempts he has made to obtain counsel on his own behalf or any attempts he may have made to seek aid from the various legal services available to prisoners. Furthermore, it does not appear to the court that it would be justified in exercising its discretion in appointing counsel for the claimant. Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273. Consequently, claimant's motion for an order granting him poor person status and for the assignment of counsel must be denied.

Claimant has also sought an order of the court granting him disclosure from the defendant of various documentary items. Claimant seeks this disclosure order from the court without having first utilized the disclosure procedures set forth in CPLR Article 31, and more particularly CPLR Rule 3120. Without having first done so, the court declines to interject itself into the disclosure process between the claimant and defendant. To do so would only encourage unduly burdensome motion practice upon the courts. Furthermore, the court has reviewed the disclosure items requested by the claimant, and finds them to be irrelevant and immaterial to the prosecution of the claim, based upon claimant's allegation of negligence in the claim.

Claimant further seeks an order of the court granting him permission to take the depositions on written questions of inmate Mathis, inmate Queeglay, and Linda Wisniewski, a counselor employed by defendant at Orleans Correctional Facility. CPLR Rule 3108 provides "[a] deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state." The testimony sought by claimant here is not to be taken outside of the State of New York. There has been no stipulation by the deponent for his/her deposition to be taken on written questions, and therefore this aspect of claimant's motion must be denied. Furthermore, claimant has failed to comply with CPLR Rule 3109 in that his notice to take a deposition on written questions does not set forth the "descriptive title and address of the officer before whom the deposition is to be taken."

Lastly, claimant seeks an order of the court granting him permission to take the oral depositions of inmate Mathis and Linda Wisniewski. In determining this part of claimant's motion, the court has made reference to the written questions, submitted by claimant, that he would have asked inmate Mathis and Linda Wisniewski, as his depositions taken on written questions. All of the questions to both of these individuals appear to relate to an incident occurring between claimant and inmate Queeglay during their participation in a "network program." Some questions also relate to inmate Mathis' conversations with inmate Queeglay, as they relate to any possible animosity between claimant and inmate Queeglay. The questions appear directed to an incident on February 27, 2000 where claimant allegedly was slashed by inmate Queeglay in a "network confrontation room." The claim alleges an unprovoked assault upon claimant on February 27, 2000 as claimant was about to enter his housing unit, after arriving there from the mess hall, a different location. Furthermore, as previously stated, the only allegation of negligence in the claim relates to the staffing by correctional officers of the walkway area between the mess hall and claimant's housing unit. Based upon the allegations of the claim, the court finds the oral deposition testimony sought from inmate Mathis and Linda Wisniewski would not be material to the prosecution of the claim, and certainly would not constitute special circumstances which would authorize the court to order the oral deposition of a non-party witness (inmate Mathis). Furthermore, since Ms. Wisniewski is an employee of the defendant, claimant would have available to him the use of written interrogatories to the defendant in lieu of an oral deposition.

Accordingly, it is

ORDERED, that claimant's motion is denied in its entirety for the reasons stated herein.

January 9, 2001
Buffalo, New York

Judge of the Court of Claims