3. Notice of Motion, dated April 26, 2004, filed April 29, 2004;
4. Affidavit of Llewellyn George, sworn to April 26, 2004, with attached
5. Affidavit of Llewellyn George in Support of Motion to Proceed as a Poor
Person, sworn to April 26, 2004;
6. Affirmation in Opposition of Thomas G. Ramsay, affirmed May 10, 2004, filed
May 12, 2004.
The underlying Claim was filed on July 14, 2003, alleging that Defendant
permitted Claimant to be attacked by two fellow inmates at Attica Correctional
Facility on April 23, 2003. Claimant previously filed a motion (M-67628) with
this Court in which he sought to compel discovery of various documents and
reports. By Decision and Order (Hudson, J.) dated February 17, 2004, the Court
denied the motion. Claimant now seeks to renew his motion to compel discovery.
CPLR 2221 (3) (e) (2) requires in pertinent part that a motion to renew "be
based upon new facts not offered on the prior motion...or shall demonstrate that
there has been a change in the law that would change the prior
determination...". Because Mr. George did not raise any new facts or change in
the law in his moving papers, the Court will consider the motion as a motion to
reargue (see Westrick v County of Steuben, 309 AD2d 1246, 1247 ).
Reargument may be granted only upon a showing that the Court misapprehended or
overlooked the law or facts, or mistakenly arrived at its previous decision
(see Andrea v E.I. du Pont de Nemours & Co., 289 AD2d 1039,
1040-1041 , lv denied 97 NY2d 609 ). Here, no such grounds
have been set forth to support reargument. Claimant admits it was he who was
ill-prepared or inartful in making his original motion. Reargument is
Claimant also seeks permission to proceed as a person pursuant to CPLR 1101.
Appointment of counsel is not statutorily or constitutionally mandated in the
prosecution of a civil claim by a prisoner. Only in circumstance where the
claimant could be deprived of liberty or suffer a grievous forfeiture is such
relief appropriate (see Matter of Smiley v State of New York, 36 NY2d 433
). Moreover, Court of Claims Act § 27 prohibits the allowance of
costs or disbursements to any party. Civil Rights Law §§ 79 (3) and
79-a (3) likewise prohibit the State from paying for any expense associated with
inmate litigation (see Shell v State of New York, 307 AD2d 761, lv
denied, 1 NY3d 505 ).
Lastly, the Court notes that in the course of seeking renewal Claimant has
attempted to modify the scope of his prior demands, apparently in an effort to
address this Court's earlier determination that those requests were overly
broad. Such amended applications should more appropriately be submitted in
demand form to opposing counsel, and then, if necessary, set forth within a
revised discovery motion. Nevertheless, in order to expedite disclosure, and
mindful that Claimant is representing himself without benefit of counsel, the
Court will direct that Defendant produce to this Court for in camera
review the complete record of all investigations of the incident conducted by
the facility, or other State agency.
Based upon the above, it is
ORDERED, that Claimant's motions are denied, except to the extent that
Defendant is directed to produce for this Court in camera review the
complete record of all investigations of the incident conducted by the facility,
or other State agency. Those records are to be produced for review within 45
days of the filing date of this Decision and Order.