New York State Court of Claims

New York State Court of Claims

LUCIANO v. THE STATE OF NEW YORK, #2002-009-008, Claim No. NONE, Motion No. M-64206


Synopsis


Claimant's application for pre-action disclosure and poor person relief was denied.

Case Information

UID:
2002-009-008
Claimant(s):
JAVIER LUCIANO
Claimant short name:
LUCIANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64206
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
JAVIER LUCIANO, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 20, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking pre-action disclosure pursuant to CPLR § 3102(c). Claimant has also made application for poor person relief pursuant to CPLR § 1101.

The following papers were considered by the Court in connection with this motion:
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 or filed.

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.


February 20, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims