New York State Court of Claims

New York State Court of Claims

HODGE v. New York, #2000-019-507, Claim No. 96265, Motion No. M-61149


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: Dennis M. Acton, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 28, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves to compel disclosure by the State of New York (hereinafter "State") pursuant to CPLR § § 3124 and 3126.

The following papers were considered by the Court in connection with this motion:
  1. Claim, filed May 22, 1997.
  2. Notice for Discovery and Inspection, filed September 15, 1997.
  1. DECISION AND ORDER, Ct Cl., January 20, 1998, Patti, J., Claim No. 96265, Motion No. M-56204.
  2. DECISION AND ORDER, Ct Cl., June 22, 1998, Patti, J., Claim No. 96265, Motion Nos. M-57199 and M-57200.
  3. SUPPLEMENTAL DECISION AND ORDER, Ct Cl., February 5, 1999, Claim No. 96265, Motion Nos. M-57199 and M-57200.
  4. ORDER, Ct Cl., August 13, 1999, Lebous, J., Claim No. 96265, Motion No. M-59581.
  5. ORDER, Ct Cl., August 13, 1999, Lebous, J., Claim No. 96265, Motion No. M-59582.
  6. "NOTICE OF MOTION TO COMPEL DISCOVERY AND INSPECT", Motion No. M-61149, dated November 10, 1999 and filed February 2, 2000.
  7. Affidavit of Martin Hodge, in support of motion, sworn to November 10, 1999.
  8. "MOTION TO COMPEL DISCOVERY & INSPECTION", of Martin Hodge, sworn to November 10, 1999, with attached exhibits.
  9. Affidavit of Dennis M. Acton, AAG, in opposition to motion, sworn to February 11, 2000 and filed February 15, 2000, with attached exhibits.
  10. "RESPONSE TO OPPOSITION TO MOTION NO. M-61149 MOTION TO COMPEL DISCOVERY", of Martin Hodge, dated February 11, 2000 and received by the Court on February 22, 2000.
  11. Letter from Dennis M. Acton, AAG, to Court dated February 25, 2000 and received February 29, 2000.
Originally, the discovery dispute between these parties was addressed in an Order by the Hon. Philip J. Patti [hereinafter "Discovery Order #1]).[1] In fact, a total of three discovery Orders were issued by Judge Patti before this matter was transferred to this Court.[2] Thereafter, Claimant moved to compel compliance with that portion of Discovery Order #1 pertaining to eight specific items. The majority of that motion was denied, although Claimant was granted a second opportunity to review his Department of Correctional Services (hereinafter "DOCS") counselor file. (Hodge v State of New York, Ct Cl., August 13, 1999, Lebous, J., Claim No. 96265, Motion No. M-59581 [hereinafter "Discovery Order #4"]). At the same time, this Court denied Claimant's poor person motion. (Hodge v State of New York, Ct Cl., August 13, 1999, Lebous, J., Claim No. 96265, M-59582 [hereinafter "Discovery Order #5"]). Claimant's current motion alleges the State has not complied with Discovery Order #4 and is also an apparent attempt to make a motion to reargue and/or renew the merits of Motion No. M-59581 [Discovery Order #4] and, in certain respects, Motion No. M-56204 [Discovery Order #1].

Claimant's primary point on this motion is that he has yet to receive photocopies of, among others things, his DOCS counselor file from 1986 through 1999, DOCS mental health file, DOCS transfer orders, and numerous DOCS directives. This Court has previously addressed and denied Claimant's requests for free photocopying of his various discovery materials and the issue will not be revisited here.[3] Nor has Claimant submitted any proof establishing he has paid for photocopies that he has not received other than vague references to filling out facility disbursement forms to pay for photocopies.[4] If Claimant wants to receive photocopies of any or all of his files he will need to pay for those copies in advance and does not need Court approval to fill out a facility disbursement form.[5]

Claimant also indicates he was not provided his second opportunity to review his DOCS counselor file as directed by Discovery Order #4. The State has advised the Court that Claimant has now been provided his second opportunity. (State's letter dated February 25, 2000).[6] Consequently, the portion of this motion seeking to compel compliance with Discovery Order #4 relative to providing Claimant a second opportunity to review his DOCS counselor file is denied as moot.

With respect to the remaining portions of Claimant's motion, reargument does not permit the unsuccessful party a forum in which to argue the very same issues again, but rather is "[d]esigned to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." (Foley v Roche, 68 AD2d 558, 567). Claimant asserts the Court made a mistake in confusing discovery Items #17 and #18. More specifically, Claimant states "Item 18 is not the "STATISTICAL RECORDS", but rather is the State Dept. of Corrections Directives sought by claimant. Item 17 is the Statistical records, and item 17 was the item that was denied by Honorable Patti." (Affidavit of Martin Hodge, ¶ 10). However, a review of Claimant's original Notice for Discovery and Inspection reveals that Item #18 sought, among other things, "[c]opies, and full listings of all fights, stabbings, cuttings for all prisons in the State of New York-NYS DOCS for the year of 1996". (Notice for Discovery and Inspection dated August 10, 1997). The item #18 to which Claimant now refers was apparently contained in an informal demand to the State entitled "Complete Listing of Items Sought by Claimant Under Discovery".[7] (Affidavit of Dennis M. Acton, AAG, Exhibit B). All of the prior discovery Orders properly and consistently used the descriptions contained in Claimant's own Notice for Discovery and Inspection. In any event, Claimant has submitted nothing to convince this Court that it previously misapplied the law or facts so as to warrant reargument relative to any issue. Consequently, the motion to reargue is denied.[8]

On the other hand, a motion for renewal should be "[s]upported by new or additional facts which, although in existence at the time of a prior motion, were not known to the party seeking renewal, and, consequently, not made known to the court [citations omitted]." (Matter of Brooklyn Welding Corp. v Chin, 236 AD2d 392). Moreover, "[l]eave to renew should be denied unless the moving party offers a reasonable excuse as to why the additional facts were not submitted on the original application". (Matter of Shapiro v State of New York, 259 AD2d 753). The "new" fact offered by Claimant is that one Sergeant Ross "[w]rote his report, and information about his investigation of inmate Frank Caserta...and filed it on the Back Ground History part of the Enemy Separation Tee Data." (Affidavit of Martin Hodge, p 9). Assuming, arguendo, this fact to be both "new" and previously unavailable, it does not warrant reversal of Judge Patti's prior determination that this background information or history "[i]s simply not relevant to the issue of whether the State negligently transferred Claimant on April 5, 1996, nor is such information likely to lead to information which is relevant to his cause of action." (Discovery Order #2, p 3). Accordingly, Claimant's motion to renew is denied.

Finally, the parties are advised that this matter has been scheduled for trial solely on the issue of liability on June 13, 2000 at the Sullivan Correctional Facility located in Fallsburg, New York.[9]
The parties will receive further correspondence from the Court with respect to the trial schedule and preparations. The parties are reminded that they were previously advised that all discovery was to be complete by February 25, 2000 and no motions would be entertained after March 31, 2000.

Accordingly, for the reasons stated above, it is ordered that Claimant's motion to compel disclosure, Motion No. M-61149, is DENIED.

March 28, 2000
Binghamton, New York

Judge of the Court of Claims

[1]Hodge v State of New York, Ct Cl., January 20, 1998, Patti, J., Claim No. 96265, Motion No. M-56204.
[2]Hodge v State of New York, Ct Cl., June 22, 1998, Patti, J., Claim No. 96265, Motion Nos. M-57199 & M-57200 (hereinafter "Discovery Order #2"). Hodge v State of New York, Ct Cl., February 5, 1999, Patti, J., Claim No. 96265, Motion Nos. M-57199 & M-57200, Supplemental Decision and Order (hereinafter "Discovery Order #3").
[3]Discovery Order #4, n 3; Discovery Order #5, p 3.
[4]The State estimates the photocopying costs to exceed $100.00 (Affidavit in Opposition of Dennis M. Acton, AAG ¶ 6). Assuming a charge of 25¢ per copy means there are over 400 pages of records. Claimant is encouraged to carefully extract from his various files only the relevant portions thereof for use at trial.
[5]With respect to Claimant's requests for photocopies of various DOCS directives, the Court may, upon request at trial, take judicial notice of relevant non-confidential DOCS directives.
[6]Inasmuch as it does not appear the attorney general sent a copy of this letter to Claimant, the Court has attached said letter to this Order as Court Exhibit A.
[7]The State was not obligated to respond to a discovery demand not served or filed in compliance with CPLR Article 31.
[8]The Court also notes the motion to reargue appears to be untimely as well.
[9]Claimant's other Claim (No. 99031) has also been scheduled for trial on the same date.