New York State Court of Claims

New York State Court of Claims

GEORGE v. THE STATE OF NEW YORK, #2004-034-544, Claim No. 108007, Motion No. M-68373


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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has filed two motions[1] seeking to renew a previous motion to compel disclosure of various reports, photographs and records, as well as his prior application for poor person status. The Court hereby denies those motions, although in the interest of judicial economy the Court will compel production of the investigative reports of the incident for in camera review, as set forth in paragraph 12 of Claimant's affidavit.

The Court has considered the following papers in connection with these motions:
1. Claim, verified July 7, 2003, filed July 14, 2003;
2. Answer, verified July 31, 2003, filed August 4, 2003;
3. Notice of Motion, dated April 26, 2004, filed April 29, 2004;

4. Affidavit of Llewellyn George, sworn to April 26, 2004, with attached exhibits;

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 [2003]). 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 [2001], lv denied 97 NY2d 609 [2002]). 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 denied.

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 [1975]). 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 [2003]).

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.

June 1, 2004
Buffalo, New York

Judge of the Court of Claims

[1]Each motion was filed under Motion No. M-68373.