On December 3, 2002, this Court issued a decision and order denying movant's
motion for permission to file an untimely claim (Motion No. M-65604). The
factors that weighed against granting the relief sought by movant were his lack
of an acceptable excuse for delay and the proposed claim's lack of legal merit.
The proposed claim alleged that officials at Clinton Correctional Facility had
wrongfully refused to provide movant with blank tapes and the use of tape
recorders that he needed to conduct depositions. He was seeking to depose
non-party witnesses in a civil action then pending in the United States District
Court for the Southern District of New York. Inasmuch as a litigant's discovery
dispute should be directed to the court in which the underlying action is
pending, it was determined that, unless there was a direction from the District
Court directing that movant be given such materials and equipment, prison
officials were justified in refusing to provide the equipment and materials
necessary for such depositions.
By the instant motion, movant seeks to reargue that earlier motion. Such a
motion must be "based upon matters of fact or law allegedly overlooked or
misapprehended by the court in determining the prior motion" (CPLR 2221[d]).
Movant's first argument is that in a Federal action, the Federal Rules of Civil
Procedure (FRCP) apply and that under those rules a party is entitled to conduct
depositions by phone "without leave of court" (FRCP 30[a],[b]). Movant further
contends that in the specific Federal action in question, that District Judge
Dolinger had ordered that plaintiff be allowed to conduct depositions of
defendant and a non-party witness by phone (Brown affidavit, ¶12, Exhibit
Movant's reasoning appears to be that, because both the FRCP and the Judge
permitted the witnesses to be deposed by telephone, it somehow became the
State's duty to provide movant with the materials and equipment necessary to
carry out such depositions. This argument overlooks the fact that movant's (or
any incarcerated litigant's) ability to conduct discovery in a lawsuit does not
make prison officials responsible for the costs incurred in conducting such
discovery. In New York, it is very clear that prison inmates who are allowed to
sue and be sued are responsible for the costs of prosecuting or defending their
own civil actions (Civil Rights Law §§79, 79-a; Court of Claims
Act §18; Gittens v State of New York, 175 AD2d 530 [3d Dept 1991];
Mapp v State of New York, 69 AD2d 911 [3d Dept 1979]), including the
costs of examinations before trial (Carter v County of Erie, 255 AD2d 984
[4th Dept 1998]; Wilson v State of New York,101 Misc 2d 924, 926 [Ct Cl
1979]). If the rule is different in Federal practice, an issue which need not
be explored, movant's remedy would have been to apply to Federal court for an
order requiring the production of such materials and equipment.
In a separate argument, movant requests that the Court strike a "slanderous"
comment allegedly made in footnote 2 of its earlier decision and order. This
footnote referred to movant's "arrest, prosecution, and conviction for rape and
drug offenses." In fact, the Court was merely paraphrasing a statement
contained in the decision of a related Federal action commenced by movant
(Brown v City of New York, 210 F Supp 2d 235 [SDNY 1999]). The complete
quote is as follows:
On June 1, 1998, Isaiah Brown ("Plaintiff" or "Brown") filed a complaint with
this Court, pursuant to 42 U.S.C. § 1983, asserting that the City of New
York and numerous individuals, including a judge and police officials
("Defendant" or "Defendants") who were involved in his arrests in 1997 for rape
and drug offenses, and his subsequent arraignment, prosecution, and conviction,
violated his Constitutional rights.
Movant objects that he was not convicted of rape, and this appears to be true.
A New York decision now referenced by movant (Matter of Brown v New York City
Police Dept., 264 AD2d 558 [1st Dept 1999]) refers to the same January 1997
charges against movant and states that although he was tried on rape, sodomy and
assault charges, he was convicted and sentenced for assault only. Being unaware
of this First Department decision, the Court relied on the less-accurate
statement contained in the Federal decision. The information contained in this
decision and order should clarify matters.
Finally, movant complains that in its original decision and order the Court did
not address the fact that his proposed claim also alleged that prison officials
had filed disciplinary charges against him in retaliation for filing a grievance
and "otherwise exercising constitutional rights" (Brown affidavit, ¶14).
The omission was inadvertent, and, in any event, the issue is easily resolved.
The Court of Appeals has stated, unequivocally, that as long as prison officials
comply with applicable rules and regulations, the State is absolutely immune
from liability for any injury arising from the commencement or adjudication of
prison disciplinary proceedings (Arteaga v State of New York, 72 NY2d 212
The Court, having granted movant's motion for reargument and having considered
his contentions, adheres to its original ruling.
1. Notice of Motion and Supporting Affidavit of Isaiah Brown, pro se,
with annexed Exhibits
2. Affirmation in Opposition of Glenn C. King, Esq., AAG
3. Reply Affidavit of Isaiah Brown, Pro Se
Filed papers: Decision and Order (M-65604)