New York State Court of Claims

New York State Court of Claims

CASEY v. THE STATE OF NEW YORK, #2005-015-024, Claim No. 109819, Motion No. M-69875


Court would not order State to serve discovery notice upon non-party in action by claimant to recover bail money posted for him by individual who later assigned right to the money over to claimant. Claimant may serve subpoena duces tecum upon assignor.

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:
Eric Casey, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion seeking an order requiring the defendant to serve a discovery notice upon a non-party is denied. This claim seeks the return of $1500 in bail money deposited on behalf of the claimant with the Commissioner of Finance of the City of New York by Marsha Powell of 1318 Scheinder Avenue, Brooklyn, New York. On April 1, 2003 the NYC Department of Finance remitted the remaining sum of $1470.00 to the New York State Comptroller's Office of Unclaimed Funds as abandoned property. On April 5, 2004 someone purporting to be Marsha Powell with a Queens Village, New York address assigned her interest in the bail money to the claimant by a bail assignment form sworn to before a notary public. By correspondence dated September 24, 2004 the Director of Services, Office of Unclaimed Funds in the New York State Comptroller's Office requested from the claimant certain proof establishing that the Marsha Powell who executed the April 5, 2004 assignment to him was the same Marsha Powell who posted bail on May 25, 1990.

Claimant now moves for an order compelling the defendant to serve an unspecified discovery device to obtain the requested information from the non-party. The defendant opposed the motion on the grounds that the information pertaining to the identity of Marsha Powell (a postmarked envelope, utility bill or driver's license) requested by the Comptroller's Office is not within its possession or control.

This Court has been found to be without jurisdiction to mandamus a state officer to take action similar to that which claimant herein requests (see Matter of Silverman v Comptroller of State of N. Y., 40 AD2d 225). "[T]he extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16)" (Matter of Ceballos v Starky, 239 AD2d 414). The determination of whether and/or when to use a discovery device pursuant to CPLR 3120 is discretionary and not ministerial. It is therefore apparent that the Court is without jurisdiction to grant claimant the requested relief.

To the extent the motion can be construed as one to compel it is well settled that a party is required to produce for purposes of discovery items or documents within its "possession, custody or control" (CPLR 3120 [1][i]). With regard to the instant matter it is also settled that a party "may not be compelled to produce information that does not exist or which he does not possess" (Corriel v Volkswagen of Am., 127 AD2d 729, 731; Gatz v Layburn, 9 AD3d 348; Romeo v City of New York, 261 AD2d 379; Carp v Marcus, 116 AD2d 854). Since the defendant does not possess the material addressed in the motion it is under no duty to disclose or secure the disclosure of the information sought. The Court notes in this regard the proper vehicle for securing information in the possession of a non-party is the issuance of a subpoena duces tecum as provided in CPLR 3120. Claimant's motion is denied for the reasons stated herein.

June 21, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 4, 2005;
  2. Unsworn, undated affidavit of Eric Casey with exhibits;
  3. Affirmation of Kevan J. Acton dated March 22, 2005.