New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2000-015-092, Claim No. 100716, Motion No. M-62070


Synopsis


Claimant, a pro se inmate, moved pursuant to CPLR 3121 for an order compelling an examination of himself. Motion denied on basis that such relief is not available under the statute.

Case Information

UID:
2000-015-092
Claimant(s):
RAYMOND RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100716
Motion number(s):
M-62070
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Raymond Rivera, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 3, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The motion of the claimant for an order pursuant to CPLR 3121 requiring that he submit to a physical examination is denied. This is a claim by a pro se inmate to recover damages for the loss of vision in his left eye allegedly caused by acts of medical malpractice committed by New York State employees at Marcy Correctional Facility and the University Hospital at Syracuse. The claimant has placed before the Court a confusing set of motion papers in which he appears to seek an order pursuant to CPLR § 3121 requiring that he, the claimant, submit to a physical examination. CPLR § 3121 permits a party after the commencement of an action to serve a notice seeking a mental or physical examination of the opposing party. It has no application to the instant matter in which claimant seeks an order directing a physical examination of himself. The requested relief is simply not available under the statute. To the extent that the motion could be read as seeking some type of disclosure from the defendant such relief is not available upon this record. The Assistant Attorney General assigned to the claim has submitted an affirmation stating that he has never been served with any discovery demands by the claimant and until such time as the claimant serves discovery demands the State is under no responsibility to provide him with any disclosure.


October 3, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated July 2, 2000;
  2. Unsworn statement of Raymond Rivera dated July 2, 2000;
  3. Notice of motion for further disclosure concerning expected expert testimony dated June 20, 2000;
  4. Affidavit of Raymond Rivera sworn to June 20, 2000;
  5. Affirmation in opposition of Joel L. Marmelstein dated June 8, 2000.