New York State Court of Claims

New York State Court of Claims

KELLEY v. THE STATE OF NEW YORK, #2004-019-596, Claim No. 104438, Motion Nos. M-69215, M-69288


Synopsis


Claimant's motions for discovery and assignment of counsel are denied.

Case Information

UID:
2004-019-596
Claimant(s):
ANDRE KELLEY
Claimant short name:
KELLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104438
Motion number(s):
M-69215, M-69288
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ANDRE KELLEY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 22, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, a pro se inmate, moves for discovery pursuant to section 3101 (d) (1) of the CPLR, as well as for the assignment of counsel pursuant to CPLR 1102. The State of New York (hereinafter "State") opposes both motions.

I. Claimant's Motion for Discovery (M-69215)

Claimant has submitted an affirmation[1] "in support of a motion to request for disclosure pursuant to CPLR 3101 (d) (1) (i)." (Claimant's Affirmation, ¶ 1). As correctly pointed out by the State in opposition, claimant's request is misguided in several ways. To the extent claimant's motion can be construed as seeking permission to engage in discovery in the first instance, a motion to the court is neither necessary nor proper. Rather, claimant may pursue discovery through ordinary means under the various discovery devices of Article 31 of the CPLR without the need for court permission or involvement. Additionally, claimant's "request for disclosure" is nothing more than a verbatim recitation of the Section 3101 of the CPLR and does not include any discovery demands or allegations that the State has failed to engage in discovery. In fact, the State indicates that claimant has failed to submit any discovery demands to date. In short, if claimant wishes the State to provide discovery responses, he must first serve the State with discovery demands. As such, claimant's request for disclosure will be denied in its entirety.

  1. Claimant's request for assignment of counsel (M-69288)
Claimant moves for the second time for the appointment of counsel. This court previously denied his first request for poor person relief. (Kelley v State of New York, Ct Cl, July 11, 2002, Lebous, J., Claim No. 104438, Motion Nos. M-65133, M-65290, M-65300, CM-65245 [UID No. 2002 -019-547]).[2] Claimant's motion is denied for the reasons previously set forth on his prior application.


Consequently, for the reasons stated above, it is ORDERED that claimant's motion for discovery, Motion No. M-69215, and motion for assignment of counsel, Motion No. M-69288, are DENIED.


November 22, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with these motions:
  1. Claim, filed June 18, 2001.
  2. DECISION AND ORDER, Lebous, J., Claim No. 104438, Motion Nos. M-65133, M-65290, M-65300 & CM-65245, filed September 11, 2002,
  3. Notice of Motion No. M-69215, dated September 27, 2004, and filed September 29, 2004.
  4. "Affirmation"of Andre Kelley in support of Motion No. M-69215, dated September 27, 2004, with attachment.
  5. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion No. M-69215, dated October 27, 2004, and filed October 29, 2004.
  6. Notice of Motion No. M-69288, dated October 18, 2004, and filed October 20, 2004.
  7. "Affirmation" of Andre Kelley in support of Motion No. M-69288, dated October 18, 2004, with attachments.
  8. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion No. M-69288, dated November 10, 2004, and filed November 12, 2004.

[1]The State is correct that claimant is not authorized to submit an affirmation rather than an affidavit. (CPLR 2106).

[2]Unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm.