New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2001-015-136, Claim No. 103284, Motion Nos. M-62961, CM-62991


Inmate claimant's motion to compel oral depositions of DOC's personnel denied. Claimant relegated to use of written interrogatories pursuant to CPLR 3130.

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:
Antonio Brown, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 4, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion (M-62961) for an order pursuant to Rule 30 of the Federal Rules of Civil Procedure compelling oral depositions of certain named employees of the Department of Correctional Services (DOCS) is denied. The defendant's cross motion (CM-62991) for a protective order pursuant to CPLR 3103 prohibiting the requested oral depositions is granted. The underlying claim seeks to recover damages in the sum of $750,000 for a battery allegedly committed by one or more correction officers at Oneida Correctional Facility on August 28, 2000.

By this motion claimant seeks to obtain an order pursuant to Federal Rules of Civil Procedure Rule 30 permitting him to conduct depositions on oral questions of certain named correction officers (R. Labella, D.J. Mullan, E. Hampshire); an unknown correction officer and an unknown correction sergeant; Superintendent M. L. Hollins; and an unknown Nurse (Jane Doe). Claimant alleges that depositions on oral questions are required "to obtain clear, complete and uncoached statements of the facts related to plaintiff's [sic] above title [sic] claim known to the defendant being deposed." Claimant, in his supporting "affirmation" also listed a series of documents which he requests be produced at the depositions to be marked as exhibits and used in the examinations pursuant to CPLR Rule 3111. No affidavit of good faith was annexed to claimant's motion papers as required by Rule 206.8(b) of the Uniform Rules for the Court of Claims (22 NYCRR 206.8(b)).

The defendant opposed the motion and cross-moved for an order pursuant to CPLR § 3103 prohibiting the requested relief on the ground that conducting oral depositions would have a negative impact on the overall functioning of the State's penal system. In support of this position the defendant offered the affidavit of Karl Kakretz, Deputy Superintendent for Security at Oneida Correctional Facility, the place where the alleged battery occurred. Mr. Kakretz alleges that personal depositions by pro se inmates of prison employees generally and correction officers in particular "would seriously undermine a correctional facility's security." He characterizes the relationship between an inmate and correctional facility personnel as unique and difficult and avers that allowing depositions on oral questions would seriously undermine "the power hierarchy within correctional facilities." The affiant states that it is for that reason that inmates are not permitted to directly question correction personnel who serve as witnesses in internal prison disciplinary proceedings. Such questioning Kakretz asserts, is performed by the hearing officer (7 NYCRR 253.5). Kakretz further alleges that due to the large number of pro se litigants similar to claimant the allowance of oral depositions of DOCS' employees would result in the expenditure of significant funds.

Defendant's attorney specifically opposed claimant's request as it related to Superintendent Hollins. Counsel argues that given the nature of the claim "the Superintendent would have no personal knowledge of the events in question or no general evidence to offer or information which would lead to any evidence in this matter." He opines that the request is unnecessary and improper as it relates to the superintendent. He also argues that claimant may not be granted an order to depose an unknown nurse and that such a deposition would be irrelevant and burdensome. Finally, counsel argues that claimant's motion should be denied absent a demonstration of claimant's financial ability to meet "all of the requirements of the CPLR". Counsel fails, however, to identify the particular "requirements" referenced. With regard to the defendant's cross-motion, counsel annexed to his papers an affirmation of good faith and attached correspondence addressed to claimant in which an alternative to the requested oral depositions was proposed. Claimant's failure to respond to the letter is also noted.

Claimant submitted an unsworn reply to defendant's cross-motion in which he argued that conducting oral depositions would not disrupt the overall functioning of the State's penal system any more than a flu epidemic affecting correction officers or the absence of officers who choose to sit for a sergeant's (promotional) examination, or correction officers' use of scheduled days off. Claimant further took issue with defendant's allegation that the facility's superintendent should not be deposed. Claimant argues that he wishes to conduct an examination of the superintendent "to obtain a clear indept [sic] view of his responsibility to respond to an assault claimed committed by his staff, and what are the recommended procedures and rules to place and approve that an inmate is placed in a Special Housing Unit." He also alleges that pursuant to Correction Law § 114-a, the superintendent or warden keeps a daily record of the proceedings of the facility and a daily record of every well-founded prisoner complaint of ill treatment by guards.

It is well established that "[t]he determination as to the terms and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3103 (subd [a]) rests in the sound discretion of the court to which application is made, subject to review by the intermediate appellate court, here the Appellate Division" (Matter of U.S. Pioneer Electronics Corp. (Nikko Elec. Corp. of Amer.), 47 NY2d 914).

In the exercise of that discretion the Court looks first to the procedural posture of claimant's motion. None of claimant's papers are in affidavit form, lacking an attestation that the drafter of the documents intends to offer the facts contained therein after being duly sworn. Nor does either his supporting "affirmation" nor his "reply" to defendant's cross-motion contain a jurat stating when, before whom and where the supposedly "sworn" statements were made. Moreover, claimant as a pro se inmate is not included among the statutorily designated individuals who may use an affirmation in lieu of an affidavit (see, CPLR Rule 2106). These defects render claimant's papers legally insufficient to constitute a motion or proper opposition to the defendant's cross-motion (see, 22 NYCRR 206.9 (b); CPLR Rule 2214 (b); Siegel, NY Prac § 205 at p 324; § 246 at p 396 [3d ed]).

In addition claimant, in both his notice of motion and his other submitted papers, seeks relief pursuant to Federal Rules of Civil Procedure Rule 30. The Federal Rules of Civil Procedure "govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81." (Fed Rules Civ Pro, Rule 1). Those rules have no application to actions pending in the New York State Court of Claims. Cumulatively, claimant's failure to annex an affidavit of good faith setting forth his efforts to resolve the discovery issues as required by 22 NYCRR 206.8(b) together with the other defects noted herein are too great for the Court to ignore as mere irregularities pursuant to CPLR 2001. To do so would engender prejudice to the defendant which has a right to expect that even a pro se claimant will be required to proceed in accordance with law and the published rules of the Court (see, Kitch v Markham, 174 Misc 2d 611; Roundtree v Singh, 143 AD2d 995; Brooks v Inn at Saratoga Assn, 188 AD2d 921).

Since defendant's cross-motion seeking an order prohibiting the oral depositions of DOCS' personnel was properly made and since claimant's purported opposition to the cross-motion is deficient, the cross-motion is hereby granted.

Assuming arguendo that claimant had properly made his motion or had properly opposed defendant's cross-motion, the end result reached here would likely have been the same. It appears that no New York State court has addressed the issue of a pro se inmate's right to conduct oral depositions of DOCS' personnel pursuant to CPLR article 31. Federal courts, however, both within and without New York State, have denied such requests favoring the use of written interrogatories (Rule 33) or depositions on written questions (Rule 31) pursuant to the Federal Rules of Civil Procedure (see, Espinal v Coughlin, 1999 WL 1063186 (SDNY); LaBounty v Coombe, 1996 WL 30291 (SDNY); Cardew v Fleetwood, 1996 WL 1067867 (SDNY); Bell v Godinez, 1995 WL 519970 (ND Ill)). This Court, although not bound to follow the federal court holdings relative to the instant matter, finds them instructive and persuasive on this issue.

This motion and other motions of this pro se claimant which preceded it demonstrate that the claimant is able to formulate appropriate written interrogatories pursuant to CPLR 3130, et seq. in order to obtain the information he might otherwise obtain through depositions on oral questions. The nature of this action for battery lends itself to that type of discovery and the Court is not convinced that the daily operation of the facility should be disturbed in order to allow claimant the use of depositions on oral questions. Moreover the claimant, who has submitted numerous poor person applications in the past, has not demonstrated on this motion or cross-motion that he has the financial resources required to obtain a stenographer and to pay the cost of transcription of the testimony sought. Claimant's motion is denied and defendant's motion prohibiting the use of depositions upon oral questions in this action is granted.

April 4, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 7, 2001;
  2. "Affirmation" in support of motion dated January 7, 2001;
  3. Notice of cross-motion dated January 23, 2001 with exhibit;
  4. Affirmation of Joel L. Marmelstein dated January 23, 2001;
  5. Affirmation of Joel L. Marmelstein dated January 23, 2001;
  6. Affidavit of Karl Kakretz sworn to January 22, 2001;
  7. Reply to defendant's protective order motion dated February 4, 2001;
  8. Claim filed on October 26, 2000.