New York State Court of Claims

New York State Court of Claims

NEWKIRK v. THE STATE OF NEW YORK, #2003-032-054, Claim No. 106729, Motion No. M-66356


Claimant's motion for permission to conduct an examination before trial is denied as being in improper form, in that the proposed deponent was not identified. In addition, the motion may be unnecessary.

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:
Michael Newkirk, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Frederick H. McGown, III, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)



This claim, filed on October 1, 2002, alleges that in May 2002, when claimant was transferred from Upstate Correctional Facility to Great Meadow Correctional Facility, his back brace and medication were taken from him and certain therapeutic treatment (which he does not describe) was stopped. Although his medication was returned to him and therapeutic treatment resumed within 72 hours, he alleges that he has never received his back brace. He states that he has a permit to possess the brace and that he needs it for his daily functioning. Claimant further alleges that in retaliation for his filing a grievance to obtain the return of his back brace, the therapeutic treatment was discontinued.

By the instant motion, claimant states that he "wishes to seek relief through the Court's (sic) in an examination before trial" and, in addition, that he requests a trial date to be set "and that a suitable place to conduct the trial be located." In response to the motion, defense counsel indicates that, because it appears claimant is only requesting the right to prosecute his action, the State intends to submit no opposing papers.

Unfortunately, claimant has not identified any individual that he seeks to depose, and therefore the Court is unable to grant his specific request. It may not, in fact, be necessary for claimant to obtain the Court's permission to conduct a deposition, as the proper method for obtaining disclosure is by stipulation or on notice without leave of the court and not by way of a motion (CPLR 3102[b]), unless the person sought to be deposed is a "person confined under legal process," such as a prison inmate (CPLR 3106[c]).

In light of the fairly straightforward allegations of this claim, however, the Court questions whether it would be necessary for claimant to engage in such extensive discovery, which must be carried out at his own expense (Gittens v State of New York, 175 AD2d 530, 531 [3d Dept 1991]; Mapp v State of New York, 69 AD2d 911 [3d Dept 1979]; Court of Claims Act §18). It is possible that much of the information he seeks could be obtained by properly framed interrogatories (CPLR 3130).

With respect to claimant's request that a trial date be set at an appropriate location, he should be aware that the trial dates of claims on the prisoner pro se calendar are set by the Court and, typically, the trials are held in the prison where the claim arose.

Claimant's motion is denied.

June 12, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an examination before trial:
1. Notice of Motion and Supporting Affidavit of Michael Newkirk, pro se

2. Letter of no opposition of Frederick H. McGown, III, Esq., AAG

Filed papers: Claim; Answer