New York State Court of Claims

New York State Court of Claims

FLYNN v. NEW YORK STATE POLICE and BCI OFFICERS JENNIFER G. HENSLER and T. COUNTRYMAN, #2007-038-538, Claim No. 112374, Motion Nos. M-73054, M-73102, M-73193, M-73220, CM-73086, CM-73101


Synopsis


Various motions dismissed as moot or as unrelated to the claim. Discovery motions denied on the merits.

Case Information

UID:
2007-038-538
Claimant(s):
BRUCE C. FLYNN
Claimant short name:
FLYNN
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE POLICE and BCI OFFICERS JENNIFER G. HENSLER and T. COUNTRYMAN
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112374
Motion number(s):
M-73054, M-73102, M-73193, M-73220
Cross-motion number(s):
CM-73086, CM-73101
Judge:
W. BROOKS DeBOW
Claimant’s attorney:
BRUCE C. FLYNN, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 7, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The claim seeks damages for injuries sustained during an allegedly improper traffic stop on March 6, 2006, and it alleges improper conduct by two New York State Troopers. Six motions have been submitted by the pro se claimant and defendant in relation to this claim; this decision and order will address each of those motions. It is noted that claimant has two other unrelated claims – Claim Nos. 112373 and 113346 – pending before the Court. Motion No. M-73054 is defendant’s motion for partial summary judgment, which claimant opposed by papers denominated as a cross motion, Motion No. CM-73086. Defendant submitted an amended affidavit in support of the motion on March 23, 2007, to which claimant submitted a “Motion in Oppisition [sic] to Dismissal.” During a telephone conference call and by letter dated June 4, 2007, the Assistant Attorney General has withdrawn Motion No. M-73054, and that motion is no longer pending before the Court. Accordingly, claimant’s opposition is moot, and Claimant’s cross motion, Motion No. CM-73086, is dismissed as moot.[1]

By Notice of Motion dated February 25, 2007 (Motion No. CM-73101), claimant seeks permission pursuant to Court of Claims Act § 10 (6) “for an extension of time to file claims.” Defendant opposes the motion on the grounds that it is unsupported by a copy of a proposed claim, and that claimant has failed to set forth facts that would entitle him to the requested relief. The motion must be dismissed, however, because the substance of the motion relates to the incidents that are addressed not in the instant claim, but in Claim No. 112373.

Similarly, claimant’s motion to dismiss defenses, Motion No. M-73102 must be dismissed because the papers submitted in support of it are expressly addressed to Claim No. 112373.

Claimant’s Motion No. M-73193 is entitled “Motion For Order to Produce Names of Employees and Testing of Employees.” The motion requests an order granting claimant the right to interview unspecified New York State Troopers and to use polygraph and voice stress testing of unidentified potential witnesses, and compelling disclosure of the names of all employees at the Troop B, Plattsburgh substation of the New York State Police. Defendant does not oppose the motion. However, although the motion has appended to it an affidavit of service, that affidavit does not address service upon the Attorney General of this motion, and thus, the Court will not construe the lack of opposition as a default.

The papers submitted in support of claimant’s Motion No. M-73193 do not demonstrate a basis for granting the motion. At the threshold, the motion papers do not demonstrate that claimant has made these discovery demands upon defendant and that defendant has failed to comply with such demands, and thus, the motion is premature (see CPLR 3124; Larrea v State of New York, UID # 2003-032-128, Claim No. 106495, Motion No. M-67375, Hard, J. [Dec. 29, 2003]; Umber v State of New York, UID # 2002-005-541, Claim No. 105358, Motion No. M-65281, Corbett, J. [Oct. 21, 2002]). Moreover, the motion does not set forth sufficient facts to allow the Court to determine whether these broad demands seek information that is potentially relevant to the claim. Indeed, during a telephone conference during which the motions on this claim were discussed, claimant stated that he was utilizing the discovery in this claim to ferret out an alleged conspiracy of harassment by the State Police against him in an attempt to end such alleged harassment, which, as claimant was informed, is an improper use of discovery in the prosecution of this claim. Nor has claimant demonstrated that the information he seeks to obtain through polygraph or voice stress testing would be admissible during the trial of this claim (cf. People v Angelo, 88 NY2d 217, 223 [1996]; Matter of Daniel BB., 26 AD3d 687, 688 [3d Dept 2006]; Matter of Harris v Novello, 276 AD2d 848, 850 [3d Dept 2000]). In sum, despite this State’s policy in favor of broad and open discovery, claimant has failed to demonstrate that the Court should grant the relief he seeks.

Similar discovery demands are made in Motion No. M-73220. In addition to the reasons stated above, this motion must be denied because its substance is addressed to incidents other than the incident at issue in the instant claim.

Accordingly, Motion No. CM-73086 is DISMISSED as moot; Motions No. CM-73101 and M-73102 are DISMISSED because they are not addressed to this claim; and Motions No. M-73193 and M-73220 are DENIED.


June 7, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims



Papers considered
:

(1) Claim # 112374, filed May 25, 2006;

(2) Verified Answer, filed June 26, 2006.


Motion Nos. M-73054 and CM-73086
:

(3) Notice of Motion to Dismiss (M-73054), dated March 9, 2007;

(4) Affidavit of Michael C. Rizzo, AAG, sworn to March 9, 2007, with exhibits A-B;

(5) Notice of Motion in Opposition to Partial Summary Judgment (CM-73086),

dated March 12, 2007;

(6) Reply Affidavait [sic] of Bruce C. Flynn, pro se, sworn to March 12, 2007;

(7) Affidavait [sic] in Support of Motion to Dismiss Defenses of Bruce C. Flynn, sworn to

March 12, 2007;

(8) Notice of Motion to Dismiss (M-73054), dated March 21, 2007;

(9) Amended Affidavit of Michael C. Rizzo, AAG, sworn to March 21, 2007, with exhibits A-B;

(10) Notice of Motion in Oppisition [sic] to Dismissal, dated March 26, 2007;

(11) Amended Affidavit of Bruce C. Flynn in Support of Motion to Dismiss, with exhibit;

(12) Correspondence of Michael C. Rizzo, AAG, dated June 4, 2007.


Motion No. CM-73101
:

(13) Notice of Motion for Extension of Time, dated February 25, 2007;
(14) “Affidavait” [sic] in Support of Motion for Extension of Time, unsworn and dated

March 25, 2007, with exhibits.

(15) Affidavit in Opposition of Michael C. Rizzo, AAG, sworn to March 30, 2007;


Motion No. M-73102
:

(16) Notice of Motion to Dismiss Defenses, dated February 25, 2007;

(17) Affidavait [sic] in Support of Motion to Dismiss Defenses, unsworn and dated February 25, 2007;

(18) Affidavit in Opposition of Michael C. Rizzo, AAG, sworn to March 28, 2007;

(19) Correspondence of Bruce C. Flynn, dated April 3, 2007.


Motion No. M-73193
:

(20) Notice of Motion, dated February 20, 2007;

(21) Motion for Order to Produce Names of Employees and Testing of Employees, sworn to and dated February 20, 2007.


Motion No. M-73220
:

(22) Notice of Motion, dated April16, 2007;

(23) Affidavait [sic] in Support of Motion for Discovery, unsworn and dated April16, 2007,

with exhibits;

(24) Affidavit in Opposition of Michael C. Rizzo, AAG, sworn to April 27, 2007.


[1]. Claimant’s submission on the cross motion includes an “Affidavait [sic] in Support of Motion to Dismiss Defenses,” sworn to March 12, 2007. The Notice of Motion does not, however, indicate that such relief is sought. Moreover, the first through fifth defenses that are addressed in the affidavit do not correlate with the six defenses that are set forth in defendant’s Verified Answer. Accordingly, to the extent claimant’s cross motion seeks the affirmative relief of dismissal of defenses, it is denied.