New York State Court of Claims

New York State Court of Claims

WAXTER v. THE STATE OF NEW YORK, #2000-007-001, Claim No. 100157, Motion No. M-61268


Synopsis


Claimant sought an order compelling disclosure prior to the commencement of an action to assist him in pursuing an action in Federal Court. The motion was denied because claimant already had actions pending in both the Court of Claims and Federal Court.

Case Information

UID:
2000-007-001
Claimant(s):
AL WAXTER
Claimant short name:
WAXTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100157
Motion number(s):
M-61268
Cross-motion number(s):

Judge:
JOHN L. BELL
Claimant's attorney:
ANDREW F. PLASSE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(MICHAEL W. FRIEDMAN, ESQ., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
April 4, 2000
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant has made an application for an order compelling disclosure prior to the commencement of an action pursuant to CPLR 3102(c). In the early morning hours of April 8, 1997, Correction Officer Michael Roberts allegedly forced claimant to engage in fellatio while claimant was incarcerated at Adirondack Correctional Facility, Essex County. Roberts was later indicted for various crimes arising from the incident and he eventually plead guilty to sodomy in the third degree and official misconduct. Following the incident, claimant was transferred to Clinton Correctional Facility, where he alleges he was unlawfully held on restrictive confinement, assaulted by a correction officer, threatened by correction officers and falsely charged with misbehavior.

Claimant pursued remedies in federal court and the Court of Claims. He prepared, without the assistance of an attorney, a notice of intention, which was served upon the Attorney General in May 1997. Thereafter, he prepared a pro se claim, which was served on April 12, 1999 and filed on April 13, 1999.[1] Claimant was represented in his federal lawsuit by Kipp Elliott Watson, Esq., and an action was commenced in the United States District Court for the Northern District of New York on February 25, 1998. Unfortunately, claimant's counsel in the federal action ostensibly failed to consider the Eleventh Amendment to the United States Constitution when he drafted his complaint because he named as defendants the State of New York, the Department of Correctional Services and Michael Roberts in his "official capacities." The action was dismissed against all defendants except Michael Roberts in his personal capacity upon Eleventh Amendment grounds. Mr. Watson is apparently still the attorney of record in the pending federal action against Roberts.

Claimant's counsel in the current motion, Andrew F. Plasse, Esq., seeks disclosure from the State of, inter alia, various supervisory personnel of Roberts. He seeks the names of such individuals so that he can frame an additional complaint in federal court premised upon 42 USC § 1983.

There are numerous problems with the current application. At the time the motion was filed, claimant had actions pending in both federal court and the Court of Claims. Claimant therefore did not need to proceed pursuant to CPLR 3102(c), which provides a procedure to obtain disclosure before an action is commenced. The action in federal court had been pending for about two years. Claimant could have sought the names of supervisory personnel as part of disclosure in such action. The Court of Claims matter[2] had been pending for nearly ten months and no attempt had been made to pursue disclosure.

While the dilatory conduct of claimant's counsel, Mr. Watson, in failing to pursue disclosure in the pending actions militates against granting the relief requested, an even more fundamental problem exists regarding the motion. Claimant is asking a State court to order defendant to produce information for claimant's federal action at a time when claimant already has an action pending in federal court. This court is not inclined to take such a step, which would encroach upon the federal court's discretionary monitoring of disclosure of an action pending before it.

It is

ORDERED that claimant's motion is denied.


April 4, 2000
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims




The return date of the motion was March 15, 2000. The following papers were read and considered by the court:


Notice of Motion, Affirmation of Andrew
F. Plasse, Esq., Affidavit of Claimant 1, 2, 3


Affirmation in Opposition of Michael W.
Friedman, Esq., Annexed Exhibits 4, 5


Reply Affirmation of Andrew F. Plasse,
Esq., Annexed Exhibit 6, 7

Filed Papers: Claim, Answer 8, 9


[1]
Since the claim was filed and served more than two years after accrual, it suffered time-related jurisdictional defects. At the same time the instant motion was filed, claimant's current counsel also filed a motion seeking, inter alia, permission to late file a claim (Motion No. M-61267).
[2]
Claimant's attorney for the current motion apparently did not learn that a claim was pending until after filing the instant motion.