New York State Court of Claims

New York State Court of Claims

MURRAY v. THE STATE OF NEW YORK, #2004-032-028, Claim No. 108470, Motion Nos. M-67833, M-67904


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-67833, M-67904
Cross-motion number(s):

Claimant's attorney:
Joel Murray, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Saul Aronson, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
April 26, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


In this action, claimant alleges that in August 2003, he was told that he would be transferred from Dorm G-1 at Bare Hill Correctional Facility to Dorm E-2. Claimant contends that he had been placed in G-1 for medical reasons, because of certain features in that dorm, such as rails in the shower and bathroom. Claimant immediately filed a grievance protesting his proposed move, and the grievance committee concluded that claimant's account was correct and thus that he could only be moved from G-1 at the direction of a doctor.

A month later, on September 16, 2003, claimant was again informed that he would be moved from G-1, this time to the annex part of the facility, Dorm M-2. He again protested but a sergeant who had been present at the first grievance hearing now stated that claimant's medical records did not indicate that he had to be housed in the main part of the facility. When claimant went to sick call, he states, the nurse reviewed his chart and said that he had to be housed in the main facility. During the time claimant was housed at M-2, he alleges that he was unable to obtain his special diet for hypertension. On September 26, 2003, he was moved back to a dorm in the main facility, but the officer in charge at M-2 required claimant to carry his own, very heavy, bags, although he protested that he was restricted from heaving lifting by the doctor. While attempting to carry a duffel bag weighing approximately 100 pounds, claimant fell and struck his head. The claim sets out four causes of action: for physical injuries caused by his inability to obtain his special diet for a period of time; for injuries suffered when he was forced to carry a heavy bag and, as a result, fell and hit his head; for inadequate medical treatment received following the blow to his head; and for "illegally" moving claimant from the main facility to the annex on September 16, 2003.

Claimant has now commenced two motions relating to discovery matters. In Motion No. M-67833, he moves for "permission to take discovery" and lists six different discovery devices that he requests permission to use (Murray affidavit I, ¶3). It is evident, however, that he has not yet served demands for any of this discovery. A motion to compel discovery is appropriate only if and when a party "fails to respond to or comply with" a legitimate discovery demand (CPLR 3124). Consequently, this motion is inappropriate and premature. Pro se inmates, unlike other litigants in this Court, are not required to confer with the assigned judge prior to commencing any discovery (Rule 206.8(b) of the Uniform Rules for the Court of Claims [22 NYCRR §206.8{b}]). They must, however, serve a proper discovery demand, and defendant must fail to respond to the demand after a reasonable period of time has elapsed. "Claimant may not seek relief under CPLR 3124 unless and until he has served discovery demands in accordance with the CPLR and the Uniform Rules of the Court of Claims and such demands are improperly rejected or inadequately answered by the State" (Williams v State of New York, #2002-019-565, Claim No. 106218, Motion Nos. M-65548, M-65549, Sept. 6, 2002, Lebous, J.). Here, defendant has not yet been asked to provide the documents or other information, and consequently the motion is inappropriate and premature.

In Motion No. M-67904, claimant seeks the Court's permission to conduct an examination before trial of another inmate, Deshawn Seally. This inmate is identified in the claim itself as the person who assisted claimant in moving his belongings from the annex Dorm M-2 back to the main facility. He was thus present when claimant attempted to argue with correction officials that he was not permitted to carry heavy objects and he was also a witness, perhaps the only witness, to claimant's fall.

CPLR 3106(c) provides that depositions of persons "confined under legal process" may be taken only with a court order. The purpose of this requirement is to "prevent the disruption of prison routine and to provide a mechanism of court oversight before a correctional facility may be compelled to open its doors for the deposition of one of its prisoners" (Nalbach v McDonald, 244 AD2d 536 [2d Dept 1997], citing to Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3106:6, at 435; 6 Weinstein-Korn-Miller, NY Civ Prac ¶3106.16). In determining whether to issue such an order, the Court must find that the expected testimony of the witness is "relevant and necessary" to preparation for the trial (EDP Medical Computer Systems v Sears Roebuck & Co., 193 AD2d 645, 646 [2dt Dept 1993]). Depositions "must be conducted under the rules promulgated by the Department of Correctional Services" (Sebastiano v State of New York, 112 Misc 2d 1030 [Ct Cl 1982], affd 92 AD2d 966 [3d Dept 1983]). Finally, as with any discovery device, the expenses of conducting such depositions rests on the party requesting them, even where that party is an inmate himself (id; Gittens v State of New York, 175 AD2d 530, 531 [3d Dept 1991]; Mapp v State of New York, 69 AD2d 911 [3d Dept 1979]; Court of Claims Act §18).

Counsel for defendant strongly objects to the Court's permitting a deposition, noting a number of circumstances that could result in an adverse impact on the security of the prison system and the Department of Correctional Services, mentioning specifically the possibility that one inmate might intimidate another; the expenses that would be incurred where inmates are located at distant facilities; the expenses associated with providing equipment, personnel and facilities to such a proceeding; and taxing already overcrowded facilities. As noted above, the expenses of conducting a deposition rests on the party that seeks it, so claimant would have to advance the sums normally paid for such an undertaking. Counsel for defendant has not provided, however, any factual information to establish that other problems would arise with the deposition requested here: the deposition of inmate Deshawn Seally by claimant. In the absence of any specific facts showing that this proposed deposition would create problems, the Court is reluctant to deprive claimant of the right to obtain in evidentiary form the testimony of a key witness. This is particularly true in light of the fact that court permission must also be sought to call a witness to testify at trial and courts are traditionally reluctant to put the State to such expense and to create the additional security risks by permitting the transport of prisoners to courthouses (Sebastiano v State of New York, 112 Misc 2d 1027 [Ct Cl 1981][denying a request for subpoenas to require the inmates be present to testify at trial and suggesting that the pro se claimant consider conducting depositions instead]).

There is practical sense to defense counsel's suggestion that rather than a deposition, claimant should make use of the alternative and less burdensome device of written interrogatories (CPLR 3130). Counsel has provided no authority, however, for the proposition that a court may require a litigant to use interrogatories when an examination before trial has been requested, when the litigant presumably stands ready to pay the attendant costs, and when the litigant is otherwise entitled to conduct a deposition. Claimant may certainly choose to employ that less-expensive device. In the situation presented here, where the testimony sought is of critical importance and the State has presented no proof of unusual problems that would be caused by allowing this deposition, the Court is not inclined to so limit claimant's ability to conduct discovery.

Claimant's motion for permission to conduct discovery in general (Motion No. M-67833) is denied as inappropriate and unnecessary, and his motion for permission to conduct an examination before trial of inmate Deshawn Seally (Motion No. M-67904) is granted.

April 26, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motions for permission to conduct discovery (Motion No. M-67833) and for permission to conduct a deposition of an inmate witness (Motion No. M-67904):
1. Notice of Motion No. M-67833 and Supporting Affidavit of Joel Murray, pro se (Murray affidavit I)

2. Affirmation in Opposition of Saul Aronson, Esq., AAG (Aronson affirmation I)

3. Notice of Motion No. M-67904 and supporting Affidavit of Joel Murray, pro se (Murray affidavit II)

4. Affirmation in Opposition of Saul Aronson, Esq., AAG (Aronson affirmation II)

5. Reply Affidavit of Joel Murray

Filed papers: Claim; Answer