New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2001-028-0548, Claim No. 103396, Motion No. M-63731


Synopsis


Claimant's application to compel discovery and for the Court to referee discovery is denied.


Case Information

UID:
2001-028-0548
Claimant(s):
PRESTON A. SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103396
Motion number(s):
M-63731
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
PRESTON A. SMITH, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 8, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Claimant's CPLR Article 31 motion for disclosure

  1. Affirmation in Opposition of Assistant Attorney General Paul F. Cagino filed
July 17, 2001 (Cagino Affirmation)


3. Letter of Preston Smith (Smith Letter) dated July 18, 2001

4. "Reply" letter of Preston Smith (Smith Letter) received August 1, 2001

Filed papers: Claim, filed November 15, 2000; Verified Answer filed December 13, 2000 and Decision and Order filed June 21, 2001.

By Decision and Order filed June 21, 2001 the Court denied the Defendant's motion to dismiss the Claim and granted Defendant's application for a protective order regarding interrogatories directed to individuals. In the instant application, Claimant seeks an order compelling certain paper discovery and for the Court to "referee the discovery stage" (Smith Affidavit, citations omitted). The Defendant opposes the application for a variety of reasons, including that Claimant has made no demand for production (see, Cagino Affirmation, ¶3).

Defendant correctly points out that disclosure is generally to be made on demand or by stipulation without leave of court (see, CPLR 3102 [b]). In this instance, Claimant has put the cart before the horse. Currently, there is neither a dispute regarding a demand before the Court, nor a reason offered for the Court to "referee" disclosure. Moreover, since many of the items sought are matters relating to Claimant's medical care and treatment (see, Smith Affidavit, ¶¶ A, C, F, G, and H) , a discovery demand is unnecessary since he is entitled to copies of his own medical records (see, Worley v State of New York, [Ct Cl, Fitzpatrick, J.], Claim No. 101433, Motion No. M-62268, UID #2001-018-068).[2] Claimant's "reply" raises issues regarding DOCS procedures for processing record requests and matters relating to a "FOIL" request, neither of which are for this Court to resolve. The Court suggests Claimant acquaint himself with the proper procedures for conducting discovery and in the future make appropriate efforts to resolve discovery disputes with the Attorney General's office before making an application for relief. Likewise, the Attorney General's office is advised to facilitate the process of disclosure so as to avoid unnecessary Court intervention.

Accordingly, the Claimant's motion is denied in its entirety.


August 8, 2001
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Claimant has denominated his affidavit a "Motion For Demand to Produce in Discovery". Claimant's attention is directed to CPLR 2214(a) and Uniform Rules for the Court of Claims §§ 206.8, 206.9 for the requirements in bringing a motion on before the Court.

[2] Recent decisions of the Court of Claims are available in a searchable database on the internet, free of charge. Access may be gained through the Court of Claims website at