New York State Court of Claims

New York State Court of Claims

MILES v. THE STATE OF NEW YORK, #2003-031-022, Claim No. 105060, Motion Nos. M-66378, M-66406


Synopsis


Claimant's motions to compel disclosure from non-parties are denied.

Case Information

UID:
2003-031-022
Claimant(s):
ROGER MILES
Claimant short name:
MILES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105060
Motion number(s):
M-66378, M-66406
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ROGER MILES, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 21, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 6, were read on motions by Claimant for an order compelling disclosure from non-parties pursuant to CPLR 3120(b):
1. Claimant's Notice of Motion (M-66378), filed February 10, 2003;
2. Claimant's Notice of Discovery and Inspection, dated February 2, 2003;
3. Claimant's Notice of Motion (M-66406), filed February 10, 2003;
4. Affidavit (M-66378) of William D. Lonergan, Esq., Assistant Attorney General, sworn to February 18, 2003;
5. Affidavit (M-66406) of William D. Lonergan, Esq., Assistant Attorney General, sworn to February 18, 2003;
6. Claimant's Reply Affidavit (M-66378 and M-66406), sworn to February 24, 2003, with attached exhibits. In two separate but similar motions, Claimant has moved to compel discovery from certain non-party witnesses pursuant to CPLR § 3120(b). Specifically, with regard to motion M-66378, Claimant seeks discovery from the Erie County Attorney, the Erie County Sheriff, and several officers from the Town of Amherst Police Department. In motion M-66406, Claimant seeks discovery from Amherst Town Justice Samuel Maislin and the Amherst Town Clerk J. William Everett.

Claimant alleges in his underlying claim, among other things, that he is being illegally confined as a result of fraudulent testimony given against him at a parole revocation hearing, which apparently took place sometime in 1997. In his original motion papers, Claimant failed to provide any statement, sworn or unsworn, demonstrating the need for disclosure from these non-parties. In his subsequent affidavit, though it is far from clear, Claimant apparently argues that these individuals have information about the jail time that he served and how Claimant received credit for this time. However, this information could certainly be obtained from the Defendant through the Division of Parole. Claimant has failed to make any showing that the discovery he seeks from these non-party witnesses is germane or necessary for the prosecution of his claim. For this reason his motion must be denied.

Additionally, although CPLR § 3120(b) does provide that a non-party may be directed by court order to produce requested documents, such a motion must be served on the non-party in the same manner as a summons (CPLR § 3120[b]; Blake v LP 591 Ocean Realty, 237 AD2d 554). Article 3 of the CPLR sets forth the various appropriate methods for serving a summons. A motion pursuant to CPLR § 3120(b) to compel non-party disclosure will not be granted where the non-party has not been properly served (see e.g. Ruiz v City of New York, 125 AD2d 661; Van Epps v County of Albany, 184 Misc 2d 159, 163). In his reply affidavit, Claimant admits that these non-parties were not properly served, but argues that he is a pro se inmate and that personal service upon these non-parties is not possible. While I understand that it may be more difficult, there are ways that such service may be obtained. In any event, assuming arguendo that Claimant is correct on this point, he must then make an application to the Court for permission to effect service by some alternate means (see CPLR § 308(5)). Claimant has failed to make any such application.

Based upon the foregoing and it is:

ORDERED, that Claimant's motion is denied.

April 21, 2003
Rochester, New York
HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims