New York State Court of Claims

New York State Court of Claims

FAGBEWEST v. THE STATE OF NEW YORK, #2002-019-580, Claim No. 104241, Motion No. M-65819


Claimant's motion to compel discovery and production of witnesses at trial is denied.

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:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
October 22, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order to compel discovery pursuant to CPLR 3124. The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed May 7, 2001.
  2. Demand for Discovery and Inspection, filed April 1, 2002.
  3. Response to Demand for Discovery and Inspection, filed May 20, 2002.
  4. "Claimants First Set of Interrogatories and Additional Request for Production Documents", dated August 27, 2002.
  5. Notice of Motion No. M-65819, dated September 3, 2002, and filed September 6, 2002.
  6. "Motion to Compel Discovery", sworn to September 3, 2002.
  7. Affirmation of James E. Shoemaker, in opposition to motion, dated October 2, 2002, and filed October 4, 2002, with attached exhibits.
This Claim alleges that Southport Correctional Facility personnel were negligent in placing a wooden stool on an icy surface for Claimant to enter a transport van on February 21, 2001. Claimant alleges the stool slipped causing him to strike his head on the side of the van resulting in various eye and head injuries.

Claimant previously served upon the State a Demand for Discovery and Inspection filed April 1, 2002. The State served a response thereto dated May 16, 2002 which included a suggestion to Claimant that his future demands be more specific. In this motion, Claimant submits a "Motion to Compel Discovery" comprised of 11 paragraphs, together with a separate document entitled "Claimants First Set of Interrogatories and Additional Request for Production Documents". The State argues that the Demand has never been served on the Attorney General's office.

With respect to the "Motion to Compel Discovery", the Court finds that the demands contained in paragraphs 1, 2 and 3 appear to be Claimant's attempt to be more specific as recommended by the State. That having been said, however, since these amended demands have not yet been served on the Attorney General's office it would be premature for this Court to address a motion to compel in connection therewith.

A review of Claimant's demands in paragraphs 4-8 reveal that they appear to be in the form of initial discovery demands made pursuant to Article 31 of the CPLR. This Court finds that Claimant has failed to establish that he ever served the State in this action with these specific demands and that the State refused to respond thereto. In other words, Claimant has not yet pursued discovery through ordinary means. Claimant must serve discovery demands in accordance with the CPLR and the Uniform Rules for the Court of Claims and such demands must be improperly rejected or inadequately answered by the State before Claimant may resort to CPLR 3124. As such, Claimant's "Motion to Compel Discovery" is premature and improper with respect to paragraphs 4, 5, 6, 7 and 8.

The remaining paragraphs of Claimant's "Motion to Compel Discovery", paragraphs 9, 10 and 11, all request the presence of various State witnesses at trial, including two correction officers, a Facility nurse, and the Superintendent. This request is also premature. This Claim has yet to be scheduled for trial. Claimant will be advised in writing at the time this matter is scheduled for trial. At that time, Claimant may make a motion for the issuance of subpoenas to compel the production of witnesses at trial in compliance with the applicable sections of the Civil Practice Laws and Rules of the State of New York and the Uniform Rules for the Court of Claims or reach an agreement with the Attorney General's office regarding the voluntary production of said witnesses. In either case, Claimant's request at this time is both premature and improper and, as such, must be denied.

Finally, enclosed with Claimant's motion papers is "Claimants First Set of Interrogatories and Additional Request for Production Documents". Claimant's motion papers are silent with respect to this document, but the State characterizes it as a request for depositions on written questions pursuant to CPLR 3108.[1] In that regard, the State indicates it does not stipulate to the use of this method. The statute only authorizes written questions pursuant to stipulation or when the testimony is being taken out of state. Here, there is no stipulation and the testimony is not being taken out of state. The State is within its rights to refuse consent to the use of CPLR 3108 and, as such, this Court cannot compel such compliance under the auspices of CPLR 3124.

In view of the foregoing, it is ORDERED, that Claimant's motion, Motion No. M-65819, is DENIED.

October 22, 2002
Binghamton, New York

Judge of the Court of Claims

[1]CPLR Rule 3108 provides "[a] deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state."