New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2001-028-0511, Claim No. 100767, Motion Nos. M-62452, M-62790, M-62814


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):
M-62452, M-62790, M-62814
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Glenn C. King, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 16, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on three discovery motions brought by claimant for various types of relief.

Motion No. M-62452
1. Notice of Motion and Supporting Affidavit of Dwayne L. Moore, filed September 21, 2000 ("Moore affidavit I").

2. Letter response of Glenn C. King, AAG, received Oct. 12, 2000 ("King letter I")

Motion No. M-62790

3. Notice of Motion and Supporting Affidavit of Dwayne L. Moore, filed Nov. 29, 2000 ("Moore affidavit II").

4. Affirmation in Opposition of Glenn C. King, AAG, filed Dec. 11, 2000 ("King affirmation")

Motion No. M-62814

5. Notice of Motion and Supporting Affidavit of Dwayne L. Moore, filed Dec. 6, 2000 ("Moore affidavit III").

6. Letter response of Glenn C. King, AAG, received December 22, 2000 ("King letter II")

This claim is based on allegations of malpractice and negligence on the part of the medical staff and employees at Coxsackie Correctional Facility. It appears that two of the motions have not been served on the Attorney General and thus are not properly brought. Consequently, Motions No. M-62452 and M-62814 are hereby denied, with leave for claimant to properly bring other motions for the identical relief. Before doing so, however, the Court requests claimant to consider the comments made below.

The motions being considered here are the fifth, sixth and seventh motions to be brought by claimant in this relatively new claim. Claimant has brought one other claim in this court, Claim No. 100356, and has brought four motions in connection with that action.

With the exception of the earliest motion, which related to the pleadings and manner of service of the claim, the remaining ten motions fall broadly under the category of "discovery" and have been brought within the last six months. In chronological order, the relief which claimant has sought in these two actions is as follows:

Claim No. 100356

Striking defendant's affirmative defenses:

Motion No. M-60792 – granted

Transfer to Sing Sing Correctional Facility to conduct deposition and to use tape or video recorder for the deposition:

Motion No. M-62123 – withdrawn

Repayment costs incurred in copying and mailing a Notice to Admit

Motion No. M-62148 – denied
Settlement of claim:

Motion No. M-62771 – remains open

Claim No. 100767

Permitting family member to take photograph of claimant's body:

Motion No. M-61776 – granted with conditions

Transport to outside physician for examination:

Motion No. M-62030 – denied, with leave to renew

Production of tapes and photos:

Motion No. M-62168 – denied as unnecessary

Transferring claimant to Coxsackie C.F., issuing 17 subpoenas, and directing prison

officials to record the witnesses' testimony on audio or video tape:

Motion No. M-62341 – denied, with leave to renew

Production of audio tape of pathology report, photographs of skin sample

Motion No. M-62452 – denied for improper service

Order of protection relating to claimant's legal work and personal property:

Motion No. M-62790 – under consideration here

Transfer to Elmira C.F. and direction to employees at Southport C.F. to stay 3,000 feet from claimant's person:

Motion No. M-62814 – denied for improper service

It goes without saying that if every claim filed in this court resulted in this amount of motion practice, few claimants would receive prompt resolution of their actions against the State. The decision on Motion No. M-62341 (decided December 20, 2000) contains significant discussion of the requirements and limitations placed on pro se inmates when they wish to subpoena witnesses for examination and conduct depositions, along with mention of alternative ways to carry out that part of discovery. This should effectively limit the number of motions that have to be made in this area.

Several of the other motions were merely requests for items to which claimant was entitled – photographs of his body, copies of relevant tapes and photographs in defendant's possession – to which the State's attorney had no serious objection within reasonable and lawful limitations, such as requiring claimant to pay necessary costs. If claimant had been willing to serve a clear demand and, if necessary, discuss details relating to costs and such matters with defense counsel, there would have been no need for motion practice, which imposes additional burdens on both parties and on the Court as well.

Finally, some of the motions, including the one under consideration here, are either meritless and/or are not properly brought within the context of the Court of Claims Act. All judges of this Court have the power to limit a litigant's ability to commence claims in this court, where a litigant has turned his legitimate right to bring suit into an abusive tool used to harass and require the needless expenditure of resources on the part of the Attorney General and the Court (see Faison v State of New York, 176 Misc 2d 808; Lee v State of New York, Oct. 4, 1990, Corbett, J., claim No. 79553, motion No. M-41426; 22 NYCRR, part 130). It does not appear that this power has, to date, been used to limit and control a litigant's right to make motions in connection with his or her claims, but there is nothing to prevent that from occurring. These comments are made at this point in order to caution claimant and perhaps encourage him to rethink his apparent strategy of escalated motion practice.

In Motion No. M-62790, the only motion which is properly under consideration at this time, claimant seeks an order of protection 1) "to secure unwarrant[ed] and unlawful taking of legal work and evidence by the defendant's employees," 2) "to stop the defendant's officer's from taking claimant's personal property without a reason or slip to show proof that my cell was searched and property taken", and 3) "to stop the defendant's employees from holding his mail from him and reading his legal mail" (Notice of Motion). In his affidavit, claimant baldly states that Assistant Attorney General Glenn C. King, who represents the State in this action, directed prison officials to take claimant's legal work and mail and to conduct searches of his cell. In his responsive affidavit, Mr. King assures the Court that he has not ordered any searches or confiscation of claimant' property or mail.

Initially, the Court states, with unqualified certainty, its belief that defense counsel has not engaged in this – or any other – improper behavior. Assistant Attorney General King is well-known and highly respected, for very good reason, and, in any event, there would be no advantage to him or to his client for such activity to occur. In addition, Assistant Attorneys General do not have the power to direct the actions of prison officials and would undoubtedly place themselves in jeopardy, professionally and legally, if they attempted to force employees of the Department of Correctional Services (DOCS) to engage in behavior that is, in essence, criminal. Finally, the Court of Claims is a court of limited jurisdiction and powers (see Court of Claims Act §9). These powers do not include equitable powers, including that of granting injunctions or temporary restraining orders. While any judge has some control of matters relating to discovery in the cases before him or her, there is no desire or willingness to intrude into the everyday management and rules and regulations of our prisons (see, Sebastiano v State of New York [112 Misc 2d 1027, 1032] [declining request to direct correction officials to remain outside the room where examinations are being conducted]). If claimant's property is being unlawfully removed from his cell, there are mechanisms in place within the prison to report such thefts and have them investigated. Petitioning this Court, with unsupported accusations of wrongdoing on the part of a public official, is not appropriate and could not, in any event, result in the type of relief sought by claimant.

Motion No. M-62790 is denied on the merits; Motions No. M-62452 and M-62814 are denied as improperly brought in that they were not served on the Attorney General.

January 16, 2001
Albany, New York

Judge of the Court of Claims