New York State Court of Claims

New York State Court of Claims

FAGBEWEST v. THE STATE OF NEW YORK, #2003-019-573, Claim No. 104241, Motion No. M-67569


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

Signature date:
December 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, makes his seventh discovery related motion, this time seeking an order compelling the defendant to respond to discovery demands. The defendant State of New York (hereinafter "State") opposes the motion.

An exhaustive overview of past discovery motions from this claimant is contained in this court's most recent Decision & Order in this matter. (Fagbewest v State of New York, Ct Cl, August 19, 2003, Lebous, J., Claim No. 104241, Motion Nos. M-67010, M-66992, M-67063, & M-67091 [UID No. 2003-019-555]).[1] As noted above, this current motion is claimant's seventh discovery motion made within the past year.[2] Additionally, claimant made four motions for the assignment of counsel.[3]

The current and seventh discovery motion is filed by claimant because the State was approximately one week late in providing discovery responses in accordance with this court's prior Decision & Order which provided the State "an additional 60 days to respond to the demand." (Fagbewest, August 19, 2003, Motion Nos. M-66992; M-67010; M-67063 & M-67091, p 5). However, this court failed to specifically state whether the deadline was to be determined from the date of the decision (August 19, 2003) or the date of the filing of the decision with the Clerk of the Court (September 15, 2003). Although it was anticipated by the court that the deadline was to be calculated from the former resulting in a deadline of October 18, 2003, the State calculated the date from the filing date for a deadline of November 15, 2003. (State's Affirmation in Opposition, ¶ 4). In any event, even using the earlier deadline date, the State served its discovery responses on October 22, 2003, a mere 4 days late. (State's Affirmation in Opposition, ¶ 5 & Exhibit E). Claimant has indicated absolutely no prejudice from this minor delay and has done nothing by filing this motion other than unnecessarily expending court time and resources.

In view of the foregoing, it is ORDERED, that claimant's motion, Motion No. M-67569, is DENIED in its entirety.

December 10, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection wit this motion:

  1. DECISION AND ORDER, Lebous, J., Claim No. 104241, Motion Nos. M-67010, M-66992, M-67063, & M-67091, dated August 19, 2003 and filed September 15, 2003.
  2. Notice of Motion No. M-67569, dated October 20, 2003, and filed October 27, 2003.
  3. Affidavit of Randolph Fagbewest, in support of motion, sworn to October 20, 2003, with attachment.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated November 12, 2003, and filed November 14, 2003, with attached exhibits.
  5. Letter from Randolph Fagbewest to Court, dated November 18, 2003, in support of motion, with attachment.

[1]Unreported decisions from the Court of Claims are available via the Internet at
[2]Additional discovery Decisions & Orders under Claim No. 104241 include the following: (1) October 22, 2002, Motion No. M-65819 [UID No. 2002-019-580]; (2) January 10, 2003, Motion No. M-66121; (3) August 19, 2003, Motion Nos. M-66992, M-67010, M-67063 & M-67091 [UID No. 2003-019-555].

[3]The prior motions relative to assignment of counsel include the following Decisions & Orders under Claim No. 104241: (1) October 10, 2002, M-65639, M-65840 (first and second motions for assignment of counsel [UID No. 2002-019-571]); (2) December 19, 2002, Motion No. M-66065 (third request for assignment of counsel); and (3) February 24, 2003, Motion No. M-66327 (fourth request for assignment of counsel [UID No. 2003-019-517]).