Notice of Motion, Affidavit in Support, Petition, Affidavit in Support of Poor
Person Status, 1,2,3,4
Affirmation in Opposition, with Exhibit 5
From an examination of the papers submitted herein, it appears that claimant,
an inmate incarcerated at Cape Vincent Correctional Facility, alleges that he
was assaulted by another inmate on June 22, 2001. A notice of intention to file
a claim was served upon the Attorney General on August 15, 2001 (see Exhibit A
to Item 5). A claim pertaining to this alleged assault has not yet been served
In this motion, claimant requests pre-action disclosure, seeking the production
of an unusual incident report pertaining to the alleged assault on June 22,
2001, as well as personal information related to his alleged assailant.
CPLR § 3102 (c) authorizes the use of pre-action disclosure, but it is
limited to situations where a claimant has established a meritorious cause of
action, and the information sought is material and necessary to that action, and
cannot be utilized as a "fishing expedition in order to determine if a cause of
action exists". (Byramain v Stevenson, 278 AD2d 619, 620).
In another claim in which an inmate alleged an assault against him by another
inmate, it was held that pre-claim discovery could not be used by a potential
claimant to determine whether facts existed which would establish a cause of
action. (Edens v State of New York, 259 AD2d 729).
In this matter, the information sought by claimant falls into the category of
information which would permit claimant "to ascertain whether facts supporting a
cause of action actually exist" (see, Edens v State of New York,
supra, at 730), and therefore this application for pre-action disclosure
must be denied.
With regard to claimant's application for poor person relief, the Court has
previously noted herein that claimant has served a notice of intention to file a
claim, but has yet to serve and file a claim. Since there is no action
currently before the Court, claimant's application is premature and must be
denied as moot. Claimant will have the opportunity to seek poor person relief
if and when a claim is served and filed.
Accordingly, it is
ORDERED, that Motion No. M-64206 is hereby DENIED in its entirety.