New York State Court of Claims

New York State Court of Claims

YOUNG v. THE STATE OF NEW YORK, #2002-019-586, Claim Nos. 106546, 106547, 106548, Motion No. M-65986


Synopsis


Claimant's motion to relative to various discovery issues is denied in part and granted in part.

Case Information

UID:
2002-019-586
Claimant(s):
RUSHAWN YOUNG #96A0446
Claimant short name:
YOUNG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106546, 106547, 106548
Motion number(s):
M-65986
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
RUSHAWN YOUNG, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
November 25, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, a pro se inmate, moves to obtain an extension of time to provide discovery responses to the State's Demand for a Bill of Particulars and Demand for Discovery and Inspection, as well as various other types of relief. The State of New York (hereinafter "State") opposes the motion in part.


The Court has considered the following papers in connection with this motion:
  1. Claim No. 106546, filed August 23, 2002.
  2. Demand for Bill of Particulars (Claim No. 106546), filed September 19, 2002.
  3. Demand for Discovery and/or Inspection (Claim No. 106546), filed September 19, 2002.
  4. Claim No. 106547, filed August 23, 2002.
  5. Demand for Bill of Particulars (Claim No. 106547), filed September 19, 2002.
  6. Demand for Discovery and/or Inspection (Claim No. 106547), filed September 19, 2002.
  7. Claim No. 106548, filed August 23, 2002.
  8. Demand for Bill of Particulars (Claim No. 106548), filed September 19, 2002.
  9. Demand for Discovery and/or Inspection (Claim No. 106548), filed September 19, 2002.
  10. "Request for Extention [sic] to Answer Defendant's Attorney's demand for Verified Bill of Particulars, and for a demand for Discovery and or Inspection", of Rushawn Young, dated October 15, 2002, and filed October 29, 2002, with attachments.
  11. Affirmation of Joseph F. Romani, AAG in response to motion, dated October 24, 2002, and filed October 28, 2002.
The primary focus of Claimant's motion is his request to obtain an extension of time to provide discovery responses to the State's Demand for a Bill of Particulars and Demand for Discovery and Inspection. More specifically, Claimant seeks an additional 6 months in which to provide said responses. The State does not object to the request for an extension, although it does comment that 6 months seems excessive. Although the Court agrees that 6 months to comply with discovery demands is longer than normal, the Court also notes that it is unlikely that these relatively new claims will be tried during the 2003 term. As such, this Court finds no prejudice in granting Claimant the full 6-month extension as requested.


Buried in Claimant's supporting affidavit are several other requests that warrant mention including a request that a lawyer be assigned to his case; that the Court demand the State produce various monitor tapes from the Facility; that the Court send the State a photocopy of an exhibit; and finally that the Court issue an order prohibiting Facility personnel from tampering with his mail.


A motion to proceed as a poor person must be served upon the parties, as well as the county attorney where the action is triable or to the corporation counsel if the action is triable in New York City. (CPLR 1101 [c]). Here, Claimant's affidavit of service reveals that he has failed to serve the county attorney which is, in and of itself, grounds for denying this motion. With respect to Claimant's request for the appointment of counsel, he does not indicate any attempts to obtain counsel on his own behalf or via various legal services. In any event, it is well settled that the appointment of counsel is discretionary in civil matters. (Matter of Smiley, 36 NY2d 433, 438). Generally, counsel will not routinely be assigned except in a proper case, such as one involving "grievous forfeiture or loss of a fundamental right". (Morgenthau v Garcia, 148 Misc 2d 900, 903). A review of each of the pleadings in these 3 claims reveals that none of these matters rise to the level warranting assignment of counsel. Rather, these cases alleging assaults by correction officers are of the type in which counsel is traditionally retained on a contingent fee basis. Consequently, the Court declines to exercise its discretionary authority on this matter.


Claimant also requests that the Court demand discovery from the State on his behalf. Claimant's request is improper. Claimant must pursue discovery through ordinary means under the various discovery devices of Article 31 of the CPLR. Moreover, Claimant may not seek relief under CPLR 3124 unless and until he has served discovery demands in accordance with the CPLR and the Uniform Rules for the Court of Claims and such demands are improperly rejected or inadequately answered by the State.


Additionally, Claimant's request that the Clerk of the Court arrange for photocopying of various documents is also improper. The fact that Claimant avows to be impoverished because he is incarcerated entitles him to no greater rights than a non-prisoner pro se litigant who does not have the funds to carry out all the normal steps of litigation, including discovery. (Gittens v State of New York, 175 AD2d 530). In the event an inmate is unable to afford the cost of photocopying, it would not be unreasonable for an inmate to transcribe by hand multiple copies of relevant papers for the purpose of filing and serving same. The Clerk of the Court is directed, however, to return to Claimant the original exhibits that were attached to his motion papers apparently under the expectation that his motion would be granted. Finally, Claimant's request that this Court issue an order prohibiting Facility personnel from tampering with his mail is also denied.


Consequently, for the reasons stated above, it is ORDERED that Claimant's motion to compel discovery, Motion No. M-65986 is GRANTED IN PART and DENIED IN PART in accordance with the foregoing.


November 25, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims