New York State Court of Claims

New York State Court of Claims

CAMPOLITO v. THE STATE OF NEW YORK, #2003-019-564, Claim No. 107825, Motion Nos. M-67276, M-67381


Claimant's motion to compel discovery is denied as premature; and claimant's "motion in support of claim" is deemed withdrawn at claimant's request

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):
M-67276, M-67381
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 15, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


There are two motions currently before the court from claimant, an inmate appearing pro se. The first motion is entitled "Notice of Motion/Submission" and was assigned Motion No. M-67276. The second motion seeks an order compelling the defendant to respond to discovery demands and was designated Motion No. M-67381. For reasons that will be explained below, claimant now indicates that it was not his intention to file the first motion. The State of New York (hereinafter "State") opposes both motions.

This underlying claim alleges that while an inmate at Elmira Correctional Facility (hereinafter "Elmira") claimant was involved in a sexual relationship with Owanda Zimmerman during her employment as a psychologist at Elmira from 2001 through March 2003. The claim alleges causes of action including negligence and assault and battery. The claim was served on the Office of the Attorney General by way of certified mail, return receipt requested, on May 30, 2003 and filed with the Clerk of the Court on June 4, 2003. The State filed a Verified Answer on July 9, 2003 and an Amended Verified Answer on July 25, 2003.

A review of claimant's additional submissions to date is in order as way of background and explanation relative to the procedural confusion in these matters. On July 17, 2003, claimant submitted to the Clerk of the Court a "Notice of Motion and Reply to Verified Answer and Memorandum of Law In-Support of Claim. (Court Exhibit 1). By way of letter dated July 28, 2003, the Clerk of the Court advised claimant that the CPLR does not make provisions for any sort of "Reply" to an answer, except in certain situations not relevant here. (Court Exhibit 2). Next, claimant submitted two sets of papers entitled "Notice of Motion" on August 11, 2003. (State's Exhibit A). Again, the Clerk of the Court responded by letter dated August 19, 2003 acknowledging receipt of "[t]wo sets of papers entitled Notice of Motion (one set for interrogatory/deposition, and the other a demand for discovery and/or inspection). The documents have been deemed disclosure demands and have been placed in your file subject to whatever legal objections may apply." (Court Exhibit 3).

On or about August 6, 2003, claimant also submitted papers labeled as a "Notice of Motion/Submission", "Affidavit in Support of Motion/Submission", "Memorandum of Law In-Support of Claim", together with an Affidavit of Service. Understandably, the Clerk of the Court designated these papers as a motion and assigned them Motion No. M-67276 with a return date of September 10, 2003. For all intents and purposes these papers read as a motion for summary judgment and the State treated the papers as such and submitted opposing papers accordingly. Claimant, however, in two subsequent letters to the court dated September 4, 2003 (Court Exhibit 4) and October 2, 2003 (Court Exhibit 5), has made it abundantly clear that he never intended for these papers to be treated as a motion, let alone a summary judgment motion stating emphatically that "no summary judgement motion is before the Court from me." (Court Exhibit 5; emphasis in original). Consequently, based upon claimant's representations that he did not intend his papers filed on August 6, 2003 to be treated as a motion, the court will deem claimant's letter as a request to withdraw Motion No. M-67276. That having been said, however, the court will note for the future benefit of this pro se litigant that the use of a "Notice of Motion" is a specific tool that triggers motion practice. In the event that claimant does not wish to file motions he should not label any document as a "Notice of Motion". Furthermore, claimant should be advised that there is no need to file papers with the Clerk of the Court for the purpose of "submissions" unless claimant is filing discovery demands and/or responses or seeks court intervention by way of a formal motion.

Accordingly, the court is now left with claimant's motion to compel discovery, Motion No. M-67381. Not surprisingly claimant again indicates that he did not really intend to make such a motion, but unlike Motion No. M-67276, requests that the court address the discovery issues raised in his papers designated as Motion No. M-67381. (Claimant's Affidavit, ¶ 3; Court Exhibit 5). As such, the court will address the substance of claimant's motion to compel discovery, Motion No. M-67381. Claimant alleges that he served various discovery demands on the State dated August 7, 2003 including a Demand for a Bill of Particulars, a Demand for Discovery & Inspection, together with Interrogatory/Depositions. It appears that the State received these discovery demands on August 11, 2003. Claimant filed this motion on August 29, 2003, a mere 18 days after the State's receipt of the same. Setting aside the issue of whether these demands are material and necessary to the issues in the first instance, claimant's motion is premature since a party has, at a minimum, 20 days to respond to demands for discovery and inspection (CPLR 3120 [a] [2]) and interrogatories (CPLR 3133), and 30 days to respond to a demand for a bill of particulars (CPLR 3042 [a]). Moreover, due to the confusion resulting from claimant's multiple filings, the State's failure to respond as of yet is entirely understandable. Consequently, claimant's motion must be denied as premature.

Accordingly, in view of the foregoing, it is ORDERED that Motion No. M-67276 is deemed withdrawn and Motion No. M-67381 is DENIED as premature.

October 15, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with these motions:

  1. Claim, filed June 4, 2003.
  2. Verified Answer, filed July 9, 2003.
  3. Letter from Anthony M. Campolito to Hon. David B. Klingaman, Chief Clerk, dated July 17, 2003.
  4. Amended Verified Answer, filed July 25, 2003.
  5. Letter from Kevin J. Macdonald, Senior Court Attorney, to Anthony M. Campolito, dated July 28, 2003.
  6. "Notice of Motion/Submission", Motion No. M-67276, dated July 31, 2003 and filed August 6, 2003.
  7. Affidavit of Anthony M. Campolito, sworn to July 31, 2003, in support of Motion No. M-67276.
  8. "Memorandum of Law In - Support of Claim No. 107825", dated July 17, 2003.
  9. Letter from David B. Klingaman, Chief Clerk, to Anthony M. Campolito, dated August 19, 2003.
  10. Letter from Anthony M. Campolito to David B. Klingaman, Chief Clerk, dated September 4, 2003.
  11. Affirmation of James E. Shoemaker, AAG, in opposition to Motion No. M-67276, dated October 1, 2003, and filed October 3, 2003, with attached exhibits.
  12. Affidavit of Peter Russell, in opposition to Motion No. M-67276, sworn to October 1, 2003.
  13. Affidavit of Ronald F. Wright, in opposition to Motion No. M-67276, sworn to September 30, 2003.
  14. Memorandum of Law, in opposition to Motion No. M-67276, dated October 1, 2003.
  15. Notice of Motion No. M-67381, dated August 26, 2003, and filed August 29, 2003.
  16. "Motion to Compel Compliance and Affidavit", of Anthony M. Campolito, in support of Motion No. M-67381, sworn August 26, 2003.
  17. Affirmation of James E. Shoemaker, AAG, in opposition to Motion No. M-67381, dated September 3, 2003, and filed September 5, 2003, with attached exhibits.
  18. Letter to Kevin J. Macdonald, Senior Court Attorney, from Anthony M. Campolito, dated October 2, 2003.