New York State Court of Claims

New York State Court of Claims

FAGBEWEST v. THE STATE OF NEW YORK, #2003-019-555, Claim No. 104241, Motion Nos. M-66992, M-67010, M-67063, M-67091


Synopsis


Claimant's multiple motions to compel discovery are denied and, upon the court's own motion, the State is granted a protective order against claimant's future use of demands for discovery and inspection.

Case Information

UID:
2003-019-555
Claimant(s):
RANDOLPH FAGBEWEST
Claimant short name:
FAGBEWEST
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104241
Motion number(s):
M-66992, M-67010, M-67063, M-67091
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
RANDOLPH FAGBEWEST, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker and Joseph F. Romani, Assistant Attorney Generals, of counsel
Third-party defendant's attorney:

Signature date:
August 19, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an inmate appearing pro se, makes four separate motions each of which seek an order compelling the Defendant to respond to discovery demands. The Defendant State of New York (hereinafter "State") opposes each motion.


The Court has considered the following papers in connection with these motions:
  1. Claim, filed May 7, 2001.
  2. DECISION AND ORDER, Claim No. 104241, Motion No. M-65819, filed November 13, 2002.
  3. Notice of Motion No. M-66992, dated June 16, 2003, and filed June 19, 2003.
  4. Affidavit of Randolph Fagbewest, sworn to on June 16, 2003.
  5. Notice of Motion No. M-67010, dated June 23, 2003, and filed June 26, 2003.
  6. Affidavit of Randolph Fagbewest, sworn to June 23, 2003.
  7. Affirmation of James E. Shoemaker, AAG, in opposition to Motion Nos. M-66992 and M-67010, dated July 7, 2003, and filed July 9, 2003, with attached exhibits.
  8. Notice of Motion No. M-67063, dated June 30, 2003, and filed July 7, 2003.
  9. Affidavit of Randolph Fagbewest, sworn to June 30, 2003.
  10. Affirmation of James E. Shoemaker, AAG, in response to Motion No. M-67063, dated July 24, 2003, and filed July 28, 2003, with attached exhibits.
  11. Notice of Motion No. M-67091, dated July 9, 2003, and filed July 14, 2003.
  12. Affidavit of Randolph Fagbewest, sworn to July 9, 2003.
  13. Affirmation of Joseph F. Romani, AAG, in response to Motion No. M-67091, dated August 5, 2003, and filed August 7, 2003, with attached exhibits.
  14. Letter from Randolph Fagbewest to Court, dated August 6, 2003 and received by the Court on August 15, 2003.
As way of an overview, based on a review of this record it appears Claimant has made at least five discovery demands over the past year and a half detailed as follows:


DATE OF DEMAND[1]MOTION NO.
Demand for Discovery & Inspection undated/2002[2] M-65819[3]
Interrogatories May 5, 2003 M-66992
Discovery Demand May 23, 2003 M-67010
Demand for Discovery & Inspection June 9, 2003 M-67063
Demand for Discovery & Inspection June 18, 2003 M-67091



Motion No. M-66992

Claimant seeks to compel a response to his Interrogatories dated May 5, 2003. The State argues that these Interrogatories are more in the style of a deposition on written questions pursuant to CPLR 3108 the use of which is improper absent the State's consent.


CPLR 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." (Emphasis added). The court agrees with the State's characterization of Claimant's Interrogatories inasmuch as it seeks answers from a specific witness. Here, there is no stipulation and the testimony is not being taken out of state. The State is within its right to refuse consent to the use of CPLR 3108 and, as such, this court will not compel the State to respond to Claimant's Interrogatories. Additionally, Claimant's interrogatories are improper as they seek to obtain various admissions and other information not within the scope of interrogatories. (Blank v Schafrann, 180 AD2d 886; Rush v Insogna, 119 AD2d 879). Moreover, it appears that this motion raises issues previously addressed by this court in a prior Decision & Order. (Fagbewest v State of New York, Ct Cl, November 13, 2002, Lebous, J., Claim No. 104241, Motion No. M-65819 [UID No. 2002-019-580]). Consequently, Claimant's motion, No. M-66992, will be denied.


Motion No. M-67010

Claimant's next motion alleges he has not received any response to his Discovery Demand dated May 23, 2003. In response, the State essentially concedes this fact, but urges that this demand mirrors Claimant's 2002 demand and, as such, the State's 2002 response[4] should suffice as a response to the May 23, 2003 demand because the two demands are repetitive in nature.


A comparison of Claimant's 2002 discovery demand to the Discovery Demand dated May 23, 2003 does reveal substantial overlap. The court has reviewed the State's 2002 response and finds it suffices, together with its opposing papers herein, as a response to Claimant's Discovery Demand dated May 23, 2003. That having been said, the court notes that the State may have and should have attempted to avoid this motion by providing at least some sort of response to the Discovery Demand dated May 23, 2003 instead of ignoring same, even if it were to have simply referred to the 2002 discovery demand and response. In any event, for the reasons stated, Claimant's motion to compel discovery, Motion No. M-67010, will be denied.


Motion No. M-67063

This motion relates to Claimant's Demand for Discovery and Inspection dated June 9, 2003. The State's response indicates that it has not yet received the requested documents from Southport Correctional Facility and Walsh Medical Center and requests a 60-day adjournment to respond to said demand. Claimant has submitted a letter dated July 28, 2003 in which he does not object to such adjournment, but then requests immediate compliance with other portions of his demand. The court will not address this demand in piecemeal fashion before the State has had an opportunity to respond to the demand in its entirety. Consequently, Claimant's motion to compel relative to the Demand for Discovery and Inspection dated June 9, 2003, Motion No. M-67063, will be denied with the State granted an additional 60 days to respond to the demand in the first instance.


Motion No. M-67091

Here, Claimant complains about the State's failure to respond to yet another discovery demand dated June 18, 2003. Again, the State indicates that it has requested the necessary documentation from Southport Correctional Facility in order to prepare a response, but has yet to receive the information. Accordingly, the State requests an additional 60 days to respond to this demand as well. Claimant has submitted a letter dated August 6, 2003, consenting to the requested adjournment. The court will grant the State the additional time requested. Consequently, Claimant's motion to compel relative to the Demand for Discovery and Inspection dated June 18, 2003, Motion No. M-67091, will be denied with the State granted an additional 60 days to respond to the demand in the first instance.


Protective order

CPLR 3103 (a) states that "[t]he court may at any time on its own initiative...make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." Although the State has yet to respond to the Demands for Discovery and Inspection dated June 9, 2003 and June 18, 2003, the court notes that, including these two latest demands, Claimant will have served at least four demands for discovery and inspection in the past year or so. A review of all of Claimant's discovery demands leads this court to the inescapable conclusion that portions of Claimant's demands for discovery and inspection contain repetitive requests and/or information that goes beyond the scope of normal discovery. As such, the court finds that Claimant has exhausted the use of the demand for discovery and inspection under CPLR 3120. As such, the court will issue a protective order to the extent of denying Claimant the right to serve any future demands for discovery and inspection, but the State must provide responses to the demands dated June 9, 2003 and June 18, 2003 as previously set forth herein.


In view of the foregoing, it is ORDERED, that Claimant's motions, Motion Nos. M-66992, M-67010, M-67063, and M-67091 are DENIED; and, upon the court's own motion, the State is granted a protective order in accordance with the terms stated herein.


August 19, 2003
Binghamton, New York

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




[1]For purposes of continuity, instead of using the varying dates of mailing, service and/or receipt mentioned by the parties, the court will identify the discovery documents by the date of each demand.
[2]The date on this demand actually reads "N/A 2002" and was filed with the Clerk of the Court on April 1, 2002.
[3]This Court previously denied Claimant's motion for an order to compel discovery pursuant to CPLR 3124 relating to the 2002 demand. (Fagbewest v State of New York, Ct Cl, November 13, 2002, Lebous, J., Claim No. 104241, Motion No. M-65819 [UID No. 2002-019-580]). Unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm.
[4]The State's 2002 response was filed with the Clerk of the Court on May 20, 2002.