New York State Court of Claims

New York State Court of Claims

PALACIO v. STATE OF NEW YORK, #2004-018-318, Claim No. 107992, Motion No. M-68669


The Court denies Claimant's omnibus motion.

Case Information

HERIBERTO PALACIO The Court has amended the caption, sua sponte, to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption, sua sponte, to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Heriberto PalacioPro Se
Defendant's attorney:
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings an "omnibus motion" for an order directing the defendant to provide the

following :
1) Directives 2733, 4911, 4913, 4917, 4919;

2) Standard Operating Procedures relating to draft procedures, court transfers, disposal of inmate property, transferring inmate property, package room procedures, encumbrances of prisoner accounts, indigent prisoner allowances;

3) All directives for the issues set forth in (2);

4) NYCRR Chapter X, Facility Administration, Part 1700;

5) State Finance Law section 8;

6) Various witnesses, including some for a new claim;

7) Package Room File;

8) All commissary receipts from May 2001 to October 2002;

9) Copy of 2064 Forms to Upstate Correctional Facility, Gouverneur Correctional Facility and Auburn Correctional Facility;

10) Copy of the valuation guide mentioned in 12/4/02 letter for Claim No. 810-0085-02;

11) List of all dates claimant was "out to court";

  1. Quarterly reports for Upstate and Gouverneur Correctional Facilities relevant to this claim;

13) A copy of postage receipts for Claim No. 810-0-105-02;

14) A copy of the United Parcel Service receipt for Claim No. 010-0158-03;

15) The video tapes for the court "pack up" at Gouverneur Correctional Facility " 810-0134-02", and transfer "pack up" at Gouverneur Correctional Facility "010-0204-03";

16) Names of the correction officers that packed claimant's property at Gouverneur Correctional Facility "810-0134-02";

17) A copy of the audio tape of the hearing involving the incident that is the subject matter of claim number 810-0134-02, "CNYS S. Ct. St. Lawrence Cty.[sic];"
18) A "clear" copy of the missive faxed to Altona Correctional Facility on 8/27/03 "13:55- dated 2/25/03-pg. 30."

In addition to this, Claimant also seeks a Decision and Order from the Court for Claimant's prior motion and costs and attorney fees for all of the "research, labor and unnecessary litigation that the defendants and respondent have caused this claimant to do in order to litigate this controversy."

Defendant, in opposition to the motion, argues that Claimant never served any discovery demands, and resorting to a motion in the first instance is improper. Defendant also argues that the motion seeks information which is not relevant to the claim and will not lead to relevant information.

The claim, filed on July 9, 2003, alleges that the State charged "exorbitant and unnecessary postage fees" against his account on October 11, 2002 and November 6, 2002, damaged his property while in transit on November 12, 2002, deliberately destroyed or stole his property on March 20, 2003, damaged his property at Gouverneur Correctional Facility on June 1, 2003, damaged his property between June 1 and June 3, at Gouverneur Correctional Facility, or while in transit to Auburn Correctional Facility, and lost stamps and never delivered a certain parcel around February 19, 2003.

Claimant's motion is denied. Article 31 of the CPLR provides the procedure for obtaining discovery information. The items Claimant seeks in the above numbered paragraphs 1-3 and 7-18 should have been sought through the disclosure process which was available to Claimant since issue was joined almost one year ago. The statutory references Claimant seeks in paragraphs 3 and 4, should be obtainable on his own through the prison law library.

Claimant also listed a number of witnesses, however, it is unclear from the motion whether claimant is seeking subpoenas for these individuals to testify at trial or for depositions. All of the witnesses, except for two, are involved in other claims, per Claimant. On a motion brought under claim number 107992, only relief relevant to that pending claim will be considered, and the relevance of the remaining two named witnesses is also unclear.

Claimant's prior motion (Motion No. M-68304) has been decided and the Decision and Order was filed on June 22, 2004. Claimant is not entitled to costs or attorney's fees.

Under these circumstances, this Court denies Claimant's omnibus motion.

July 20, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

"Omnibus Motion" of Heriberto Palacio..............................................................1

Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney

General, in opposition...............................................................................2