New York State Court of Claims

New York State Court of Claims

PACK v. STATE OF NEW YORK, #2005-018-466, Claim No. 109603, Motion No. M-69666


Synopsis


Claimant's motion pursuant to CPLR 3124 is denied.

Case Information

UID:
2005-018-466
Claimant(s):
ETHAN PACK
Claimant short name:
PACK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109603
Motion number(s):
M-69666
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ETHAN PACKPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 3, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion pursuant to CPLR 3124 seeking an order directing Defendant to

provide certain documents. The claim, filed July 14, 2004, alleges that the State failed to adequately protect Claimant, an inmate at Cape Vincent Correctional Facility, from injuries he sustained when his "cube" was set on fire. The claim alleges that the State failed to take proper security measures in the layout of its correctional facility and that there were a pattern of attacks which should have alerted the State of the risk to a certain class of inmates. In Claimant's affidavit in support of his motion, he asserts that there are reports that were generated by Defendant's employees, including communications from other inmates, indicating Claimant would be injured if he remained at the facility. Claimant alleges, by this motion, that Defendant has failed to provide any "discovery articles" although Claimant has sought the information through "legal letters and F.O.I.A.[1] (Claimant's affidavit in support ¶4). Claimant next alleges that he served his notice of discovery and inspection at the same time as this motion, and that a copy was attached to his motion as Exhibit A (Claimant's affidavit in support ¶5).

No copy of Claimant's notice for discovery and inspection was attached to the copy of the motion that he filed with this Court. Apparently, no copy of the notice was attached to the copy of the motion Claimant served upon Defendant either. Defendant denies ever receiving any notice for discovery and inspection in this matter. Since Claimant is seeking to compel the Defendant to respond to discovery demands that he apparently never served upon Defendant, and by his own affidavit he only intended to serve on the date he signed the supporting affidavit for this motion to compel, his motion is premature. Claimant's F.O.I.L requests are not discovery demands. The correspondence that Defendant has received from Claimant does not make any demand for production of documents (see Affirmation in Opposition, Exhibit B). Thus, it is inappropriate to seek an order compelling Defendant to comply with discovery demands that it has not yet received.

Claimant's motion is DENIED.


May 3, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion...................................................................................................1


Affidavit of Ethan Pack, in support.......................................................................2


Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney

General, in opposition, with exhibits attached thereto...............................3

[1] Presumably, Claimant intended F.O.I.L. (Freedom of Information Law) request.