New York State Court of Claims

New York State Court of Claims

WAXTER v. THE STATE OF NEW YORK, #2000-007-050, Claim No. 102256, Motion No. M-62008


Claimant moved for non-party disclosure pursuant to CPLR 3120(b). Motion 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):
Cross-motion number(s):

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:
September 18, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for an order directing non-party disclosure pursuant to CPLR 3120(b). The return date of the motion was August 16, 2000. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Andrew F.
Plasse, Esq., Annexed Exhibit 1, 2, 3

Affirmation in Opposition of Michael W.
Friedman, Esq. 4

Filed Papers: Claim, Answer 5, 6

On April 8, 1997, Correction Officer Michael W. Roberts allegedly forced claimant to perform oral sex upon him. The underlying facts are set forth in more detail in the court's prior decision and order (Motion No. M-61267, filed April 5, 2000), in which claimant's motion for permission to late file a claim was granted. In the current motion, claimant seeks an order directing the Essex County District Attorney to provide him with a copy of the District Attorney's file concerning the indictment of Michael W. Roberts (Indictment No. 98-009). Defendant's principal argument in opposition is that the motion was not properly served upon the Essex County District Attorney.

CPLR 3120(b) provides that a non-party may be directed by court order to produce discovery documents. The motion for non-party disclosure must be served on the non-party in the same manner as a summons (CPLR 3120[b]; Blake v LP 591 Ocean Realty, 237 AD2d 554). The various methods for serving a summons are included in article 3 of the CPLR. A motion to compel non-party disclosure will not be granted where the non-party has not been properly served (see, e.g., Ruiz v City of New York, 125 AD2d 661; Van Epps v County of Albany, 184 Misc 2d 159, 163).

Here, the affidavit of service filed with the court recites service upon the "Essex County Attorney" by serving Dianne Fox, "managing agent." Various types of service are set forth on the form and the process server put an "X" in the box for service upon a corporation. Initially, the court notes that the Essex County District Attorney is not a corporation. Methods set forth in the CPLR for service upon an individual should be used when serving the Essex County District Attorney. No authority has been presented nor has the court found any indication that service upon a "managing agent" for the County Attorney constitutes sufficient service upon the District Attorney. Claimant has failed to establish proper service of the motion upon the Essex County District Attorney and therefore the motion must be denied (Ruiz v City of New York, supra).

It is

ORDERED that claimant's motion is denied.

September 18, 2000
Plattsburgh, New York

Judge of the Court of Claims