New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2004-031-180, Claim No. 105408, Motion Nos. M-69006, M-69246


Synopsis


Claimant's motion for Court appointed expert is denied. Claimant's motion to compel disclosure is denied as moot

Case Information

UID:
2004-031-180
Claimant(s):
ANTONIO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105408
Motion number(s):
M-69006, M-69246
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ANTONIO BROWN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 13, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 through 12, were read on motions by Claimant for the appointment of a neutral expert and for an order compelling disclosure from Defendant pursuant to CPLR 3124:
1. Claimant's Notice of Motion (M-69006), filed August 25, 2004;
  1. Claimant's Affidavit, sworn to August 20, 2004;
3. Claimant's "Brief In Support Of Motion Pursuant To CPLR 3036(2)" dated August 20, 2004;
4. Claimant's correspondence, dated September 1, 2004;
5. Notice of Motion (M-69246), filed October 15, 2004;
6. Claimant's Affidavit, sworn to October 6, 2004;
7. Claimant's "Brief In Support Of Motion To Compel Discovery," dated October 8, 2004;
  1. October 27, 2004 correspondence of Heather R. Rubinstein, Esq.;
9. October 28, 2004 correspondence of Claimant;
10. Affirmation of Heather R. Rubinstein, Esq., dated November 23, 2004, with attached exhibit;
11. Affidavit of Kim Rafferty, sworn to November 23, 2004, with attachments;
12. Claimant's Affidavit, sworn to December 2, 2004, with exhibits. In his claim filed on December 28, 2001, Claimant asserts that he was assaulted by correction officers on October 31, 2001 at Five Points Correctional Facility. Currently before me are two motions filed by Claimant. The first seeks the appointment of a neutral expert, ostensibly made pursuant to CPLR 3036(2). The second seeks to compel Defendant to produce documents and a videotape relating to the October 31, 2001 incident underlying the claim.
MOTION PURSUANT TO CPLR 3036(2)
In motion M-69006, Claimant asserts that the videotape of the incident produced to Claimant has been altered by Defendant. Claimant requests that the Court appoint a neutral expert to demonstrate that the tape has, indeed, been altered. However, the appointment of an expert pursuant to CPLR 3036(2) relates to the simplified procedure for the determination of commercial disputes. This procedure is akin to arbitration and requires the consent of both parties. It is not applicable to this matter. In any event, I find that Claimant's lay opinion that the videotape in question has been altered is not sufficient to warrant the relief requested. Claimant is, of course, free to retain his own expert for this purpose.
MOTION TO COMPEL
With motion M-69246, Claimant requests that Defendant be compelled to provide certain "To/From" reports by two of the correction officers involved in the October 31, 2001 incident, as well as the original "35 gigabyte digital tape that captured the entire incident . . . ." In response to this motion, Defendant has adequately demonstrated that "To/Froms" have already been provided to Claimant. In fact, they are attached to Defendant's opposition papers as pages 15 and 16 of exhibit A. Further, Defendant, having already provided a copy of the videotape of the incident, opposes production of the original. I find that Defendant's responses to Claimant's demands are adequate and that his motion should, therefore, be denied. In the event that Claimant retains an expert and that expert indicates to the Court that the original tape is required, the Court may revisit this issue. In any event, however, the original tape should be preserved for review and comparison by the Court at the trial of this matter.

Accordingly, it is hereby

ORDERED, that Claimant's motions are denied. However, Defendant is directed to preserve the original videotape of the October 31, 2001 incident for review by the Court at the time of trial.

December 13, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims