New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2003-032-055, , Motion No. M-66269


The Court adheres to its prior decision to deny a prison inmate's motion for permission to late file. There is no legal merit to the proposed claim based on prison officials' refusal to provide blank tapes and a tape recorder for claimant to use to take a deposition.

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:
Isaiah Brown, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 16, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


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][2]). 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 B).[1]

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[3], 79-a[3]; 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 [1988]).

The Court, having granted movant's motion for reargument and having considered his contentions, adheres to its original ruling.

June 16, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for reargument of a prior decision and order of this Court:
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)

[1] Judge Dolinger's order and memorandum was not contained in the submissions made on the original motion.