New York State Court of Claims

New York State Court of Claims

KELLEY v. THE STATE OF NEW YORK, #2005-019-540, Claim No. 104438, Motion No. M-70132


Synopsis


Claimant's motion for an order directing preliminary conference is denied.

Case Information

UID:
2005-019-540
Claimant(s):
ANDRE KELLEY
Claimant short name:
KELLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104438
Motion number(s):
M-70132
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ANDRE KELLEY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 14, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, a prisoner appearing pro se, moves for an order directing the scheduling of a preliminary conference for the purpose of resolving various issues in this case including discovery disputes, the assignment of counsel, and to discuss settlement of this action. The State of New York (hereinafter "State") opposes the motion.

Claimant's motion for a preliminary conference is denied. Preliminary conferences are not mandated in prisoner pro se claims and the court declines to direct a conference in this matter. (22 NYCRR 206.10 [a]).


It is difficult to ascertain whether claimant is seeking relief in addition to the scheduling of a preliminary conference, but to the extent he once again raises discovery and the assignment of counsel issues, those matters were previously determined and denied in prior Decisions and Orders of this court. (Kelley v State of New York, Ct Cl, November 22, 2004, Lebous, J., Claim No. 104438, Motion Nos. M-69215 & M-69288 [discovery and assignment of counsel] [UID No. 2004-019-596]; Kelley v State of New York, Ct Cl, February 3, 2005, Lebous, J., Claim No. 104438, Motion No. M-69563 [discovery] [UID No. 2005-019-508]; Kelley v State of New York, Ct Cl, July 11, 2002, Lebous, J., Claim No. 104438, Motion No. M-65300 [poor person] [UID No. 2002-019-547]).[1] To the extent that claimant's motion could be deemed as a motion for reargument, claimant offers nothing indicating the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law originally presented in any of those prior motions that warrants reargument of said prior Decisions and Orders. (CPLR 2221 [d]). Additionally, claimant is free to contact defendant on his own to initiate settlement negotiations, but the court will not participate in such discussions.


Finally, to the extent that claimant makes references to the need for a jury trial, such request is denied. There is no right to a jury trial in the Court of Claims. (Court of Claims Act § 12 [3]; Graham v Stillman, 100 AD2d 893).


Accordingly, in view of the foregoing, it is ORDERED that claimant's motion, No. M-70132, is DENIED.


June 14, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 104438, Motion Nos. M-65133; M-65290; M-65300 & CM-65245, filed September 11, 2002.
  2. DECISION AND ORDER, Lebous, J., Claim No. 104438, Motion Nos. M-69215 & M-69288, filed December 1, 2004.
  3. DECISION AND ORDER, Lebous, J., Claim No. 104438, Motion No. M-69563, filed February 9, 2005.
  4. Notice of Motion No. M-70132, dated April 28, 2005 and filed May 4, 2005.
  5. Affidavit of Andre Kelley, in support of motion, sworn to April 26, 2005, with attached exhibits.
  6. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated June 6, 2005, and filed June 8, 2005.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at