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.
As noted above, this current
motion is claimant's seventh discovery motion made within the past
Additionally, claimant made four
motions for the assignment of counsel.
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.
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,
Notice of Motion No. M-67569, dated October 20, 2003, and filed October 27,
Affidavit of Randolph Fagbewest, in support of motion, sworn to October 20,
2003, with attachment.
Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated November
12, 2003, and filed November 14, 2003, with attached exhibits.
Letter from Randolph Fagbewest to Court, dated November 18, 2003, in support of
motion, with attachment.
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.
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]).