Claimant, an inmate appearing pro se seeks, among other things, an order
lifting the previous stay of this matter. The State of New York (hereinafter
"State") does not oppose that portion of the motion, but does oppose the
This court previously dismissed claimant's first cause of action relating to
the filing of a "false" misbehavior report (Rivera v State of New York
Ct Cl, July 16, 2002, Lebous, J., Claim No. 105785, Motion Nos. M-65234 &
M-65320 [UID No. 2002-019-548]),
as well as a
subsequent motion by claimant seeking leave to renew said partial dismissal.
(Rivera v State of New York
, Ct Cl, October 18, 2002, Lebous, J., Claim
No. 105785, Motion No. M-65806 [UID No. 2002-019-579]). This court also denied
claimant's motion for an order striking the third, fourth, fifth and sixth
affirmative defenses contained in the State's Verified Answer. (Rivera v
State of New York
, Ct Cl, October 9, 2002, Lebous, J., Claim No. 105785,
Motion Nos. M-65743 & M-65750 [UID No. 2002-019-577]). Thereafter, this
court granted claimant's motion for a stay of the remaining causes of action
contained in his claim pending his appeal of said decisions. (Rivera v State
of New York
, Ct Cl, March 4, 2003, Lebous, J., Claim No. 105785, Motion No.
M-66357). The Third Department recently affirmed this court's dismissal of the
first cause of action, as well as the denial of claimant's motion to strike
various affirmative defenses. (Rivera v State of New York
, 5 AD3d 881).
By way of this motion claimant seeks to vacate the prior stay since his appeals
have now been determined. The State has no objection to placing this matter
back on the court's calendar. In view of the fact that the appeals in this
matter have been resolved, this court will grant claimant's motion to the extent
of lifting the prior stay of this claim.
However, claimant's additional requests for relief must be denied. On March
15, 2004, claimant indicates that he was told to turn over his personal property
in preparation for a transfer from Clinton Correctional Facility ("Clinton") to
Southport Correctional Facility ("Southport"). Upon arrival at Southport,
claimant discovered his files regarding this claim were missing and now asserts
that his files were intentionally destroyed by correction officers. With
respect to those missing files, claimant argues that a video tape from his
housing area in Clinton will show what the officers did with his property.
Claimant also alleges that the correction officer involved with his original
claim has threatened him and that the State should be sanctioned for such
behavior by striking its Verified Answer. The court notes that this claim does
not assert any bailment cause of action and, as such, claimant's request for
discovery relating thereto such as the video tape will be denied. Additionally,
claimant's request for an order striking the State's Verified Answer is without
merit. Finally, claimant's request for the State to produce him for a "motion
hearing" is denied inasmuch as the court denied claimant's request for oral
argument of this motion. (Notice of Motion).
Accordingly, claimant's motion, Motion No. M-68593, is GRANTED IN PART with
respect to lifting the stay of this matter and DENIED IN PART with respect to
claimant's remaining requests, in accordance with the terms hereof.
DECISION AND ORDER, Lebous, J., Claim No. 105785, Motion Nos. M-65234 and
M-65320, filed August 2, 2002.
DECISION AND ORDER, Lebous, J., Claim No. 105785, Motion Nos. M-65743 and
M-65750, filed October 24, 2002.
DECISION AND ORDER, Lebous, J., Claim No. 105785, Motion No. M-65806, filed
November 4, 2002.
DECISION AND ORDER, Lebous, J., Claim No. 105785, Motion No. M-66357, filed
March 18, 2003.
Notice of Motion No. M-68593, dated May 14, 2004, and filed June 4, 2004.
Affidavit of Jose Rivera, in support of motion, sworn to May 24, 2004, with
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated June 15,
2004, and filed June 17, 2004.