New York State Court of Claims

New York State Court of Claims

ROY v. THE STATE OF NEW YORK, #2004-031-101, Claim No. 101202, Motion Nos. M-68472, M-68410, M-68033, M-67989


Claimants' motions for reargument are denied. Claimant's motions to deem issues resolved or to compel further discovery are granted in part

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):
M-68472, M-68410, M-68033, M-67989
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 12, were read on motions by Claimant for an order deeming certain discovery issues resolved in his favor and for reargument of previous discovery issues:
1. Claimant's "Reargument and Reply to Decision and Order" (M-67989), filed on January 26, 2004, with attached exhibits;
2. Affirmation of Timothy P. Mulvey, Esq. (M-67989), dated February 9, 2004;
3. Claimant's unsworn "Reply In Opposition of Defendant's Affirmation," dated June 20, 2004;
4. Claimant's "Reargument To Decision and Order" (M-68033), filed February 9, 2004, with attached exhibit;
5. Correspondence of Timothy P. Mulvey, Esq., dated February 20, 2004;
6. Claimant's Notice of Motion (M-68410), filed on May 7, 2004;
7. Claimant's Affidavit, sworn to May 3, 2004, with attached exhibit;
8. Claimant's correspondence, dated May 3, 2004;
9. Claimant's Notice of Motion (M-68472), filed May 20, 2004;
10. Claimant's Affidavit, sworn to May 13, 2004, with attached exhibits;
11. Claimant's "Reply In Opposition to Defendant's Affirmation," sworn to May 3, 2004;
12. Affirmation of Timothy P. Mulvey, Esq., dated May 24, 2004. Claimant has filed four new motions relating to discovery in this matter. (To date, Claimant has filed a total of 10 discovery motions in this action). Of these new motions, two (M-67989 and M-68033) request reargument of a previously determined motion and two (M-68410 and M-68472) request that issues be deemed resolved in Claimant's favor, or that further disclosure from Defendant be directed, due to Defendant's failure to comply with the Court's December 8, 2003 decision and order.
Motion M-66732 was addressed in a decision and order filed on December 8, 2003. In that decision and order, I directed Defendant to provide Claimant with certain documents upon payment of reasonable copying costs by Claimant.

Now, with motion M-67989, Claimant refers to his October 15, 2002 discovery demand and asserts that the Court erred when it failed to direct responses to his demands numbered 6 - 13. For the most part, Claimant fails to address how the Court was in error, or why reargument should be granted, except to say on page two of his January 20, 2004 affidavit that "Its (sic) a mystery to me woundering (sic) why this court would make such an Order directing defendant to provide me with medical records and unusual incident report. Espically (sic) when after reading and reviewing my Affidavit motion papers that this court would of least have known and realized that No request was made by me asking for such discloser (sic) of the ‘record and report'. But maybe decided to make the order anyways (sic) only just to pacify me." I will have to explain, again, the current discovery posture of this matter, for Claimant's benefit.

I note that Claimant's April 10, 2003 Affidavit in support of his previous motion included the following: "6. No responses is given to discovery # 9,10,11,12 & 13 other than to state that the information sought was attached to the ‘Unusual Incident Report' which was not among with the rest of the papers as he claims." The meaning I took from this statement was that, although Defendant's response indicated that the Unusual Incident Report ("UIR")was attached to its response, Claimant did not receive that document. As the document was purportedly attached as the only response to Claimant's first demand, which requested his medical records, and in an attempt to interpret this in a way most favorable to Claimant, I directed Defendant to provide Claimant with both the UIR and his medical records. Claimant's comments relating to my previous decision and order are inexplicable and representative of his struggle to clearly communicate his thoughts in writing.

In any event, a motion to reargue is governed by CPLR 2221[d][2] and "is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application." Foley v Roche, 68 AD2d 558, 567-568.

Defendant's opposition to Claimant's two motions for reargument is of no assistance in determining whether Claimant has met his burden. I note that, in its two paragraph opposition, Defendant bases its opposition on the fact that "[t]his Court has previously ruled on claimant's numerous discovery demands . . . ." As a motion to reargue presupposes a previous ruling, I can only assume that Defendant misinterpreted the nature of Claimant's motions.

Be that as it may, in this motion, with the exception of items 5 and 11, Claimant offers no indication as to how the Court's previous ruling was in error. With regard to item 5, which requested " [a] complete list of names of all the inmates housed in C-2 and D-2 Units at Willard DTC on October 6, 1998." I determined that this demand was patently objectionable, overbroad, and irrelevant. Claimant now argues that this information is necessary to identify potential witnesses to the events alleged in the claim. However, the documents Claimant seeks will not indicate if a particular inmate witnessed the events at issue, and the information Claimant seeks (the identity of witnesses), to the extent that it exists, would be contained in the UIR and disciplinary hearing records which I have previously directed Defendant to produce. For this reason, motion M-67989 is denied.

With motion M-68033, Claimant requests that the Court reconsider the requirement contained in my December 8, 2003 decision and order that he pay copying costs to Defendant. Claimant asserts that he had previously been granted poor person status and, therefore, must be provided the requested documents free of charge. (This is despite Claimant's representation in M-67989 that the documents the Court directed Defendant to provide he neither needs nor wants). However, this precise argument was addressed in Drew v State of New York (Ct Cl, February 26, 2004 [Claim No. 107733], Patti, J., UID #2004-013-014). In that case, Judge Patti stated:
"Claimant presumes that had poor person status been granted in the above cited cases, then the relief of free copying would be available, but that assumption is incorrect, as there is no general provision which requires the State to pay the litigation expenses in claims brought against it."
Similarly, in this matter, I find that there is no requirement for the State to pay the litigation expenses related to copying costs for the documents Claimant requests in this matter. Motion M-68033 must, therefore, be denied.
Claimant has also filed two motions in which he asserts that Defendant has failed to comply with the Court's decision and order filed on December 8, 2003. In that order, I directed Defendant to provide Claimant with: 1) the UIR concerning the events at issue in this claim; 2) copies of Claimant's medical records from October 6, 1998 to date; and 3) records in Defendant's possession relating to Claimant's October 13, 1998 disciplinary hearing.

In motion M-68410, Claimant alleges that Defendant failed to provide him with the entire UIR (again despite his claims in M-67989 that he neither needs nor wants this document). How Claimant determined that the report he received was incomplete is unclear and, despite the fact that Claimant purports to attach a copy of the UIR that he received to the motion papers as exhibit B, no such document is, in fact, attached.

In motion M-68472, Claimant alleges that Defendant has failed to provide him with a complete transcript of his disciplinary hearing in that the testimony given by other inmates at the hearing has not been produced. Claimant has not identified who these inmates are or how many there are. In fairness, Claimant may not know.

Defendant has submitted one affidavit in response to both M-68410 and M-68472 and asserts that it has fully complied with the Court's previous decision and order. It may be that the UIR provided to Claimant was, in fact, complete and that, although other inmates were interviewed for Claimant's disciplinary hearing, they did not provide recorded testimony. Defendant has failed to take the opportunity to clarify these issues, however, by specifically addressing Claimant's assertions that the UIR given to him was not complete and that transcripts of testimony from other inmates were not provided to Claimant.

For these reasons, I find that Claimant's motion should be granted in part.

Accordingly, it is hereby

ORDERED, that Claimant's motions to reargue (M-67989 and M-68033) are denied in their entirety, and it is further

ORDERED, that Claimant's motions M-68410 and M-68472 are granted in part, and Defendant is directed to provide: 1) a complete copy of the UIR and any attachments to that document in its possession relating to the October 6, 1998 incident, which is the subject of this claim; and 2) a complete copy of the disciplinary hearing packet and related transcripts, including all inmate testimony, to both the Claimant and to my chambers within 45 days of the filed date of this decision and order.

August 3, 2004
Rochester, New York

Judge of the Court of Claims