New York State Court of Claims

New York State Court of Claims

SPIRLES v. THE STATE OF NEW YORK, #2007-044-596, Claim No. 113971, Motion Nos. M-73935, M-74041


Synopsis


Court denied claimant's motion to amend claim as moot, because time to amend as of right had not expired. Claimant's motion to compel responses to discovery demands was premature, as demands were not served prior to submission with the motion papers.

Case Information

UID:
2007-044-596
Claimant(s):
WILLIE SPIRLES
Claimant short name:
SPIRLES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113971
Motion number(s):
M-73935, M-74041
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
WILLIE SPIRLES, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 11, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim (Claim No. 113971) alleging that his property was lost when he was transferred from general population to a Special Housing Unit (SHU) while he was incarcerated at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant filed a motion (Motion No. M-73935) to compel defendant to accept claimant’s “corrective motion as an add on to the one . . . [already] filed.”[1] Defendant opposes that motion, arguing that because claimant could amend the claim as of right, the motion is not necessary. Claimant replies. Thereafter, claimant filed a second motion in this claim (Motion No. M-74041) “to [penalize] the Attorney General” for failing to disclose certain requested documents.[2] Defendant opposes that motion as well.
MOTION NO. M-73935
Claim No. 113971 contains only two numbered paragraphs: the first containing claimant’s address, and the second containing all of the factual allegations of the cause of action for bailment. In the Verified Answer, defendant noted claimant’s failure to list each factual allegation in a separate paragraph. Apparently in response to defendant’s answer, claimant filed Motion No. M-73935 to amend the claim. The Uniform Rules for the Court of Claims (22 NYCRR) § 206.7 (b) provides that “[p]leadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court . . . within 40 days after service of a pleading responding to it.” The claim in this matter was filed on July 18, 2007 and defendant timely served its answer on August 22, 2007. As a result, claimant had until October 1, 2007 in which to serve an amended claim as of right. Rather than filing and serving an amended claim, however, claimant filed Motion No. M-73935 seeking unnecessary permission to compel defendant to accept an amended claim.

A “correct pertition [sic]” is attached as an exhibit to the motion papers, which were filed on September 5, 2007 and served on the Attorney General’s Office, at the latest, on August 30, 2007.[3] Because the time in which to amend the claim as of right had not expired, the Court hereby deems the “correct pertition [sic]” attached to claimant’s affidavit sworn to August 30, 2007 to be an amended claim filed as of September 5, 2007, and served on the Attorney General by ordinary mail as of August 30, 2007 (see Berry v State of New York, Ct Cl, July 28, 2003, Minarik, J., Claim No. 107454, Motion No. M-66737 [UID # 2003-031-052]).[4] Defendant shall file and serve an answer to the amended claim within 40 days from the filing date of this Decision and Order (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [a]). Claimant’s Motion No. M-73935 is denied as moot.
MOTION NO. M-74041
Claimant moves in Motion No. M-74041 to compel defendant to disclose: 1) the form dated February 6, 2006, entitled “Personal Property Transferred” (I-64 form) from Upstate Correctional Facility to Elmira; 2) his package list for the past two years; and 3) the I-64 form dated April 21, 2007 from Elmira (general population to SHU). Assistant Attorney General (AAG) Roberto Barbosa states that as of October 3, 2007, he had not received any discovery demand for the requested documents. However, AAG Barbosa has treated Motion No. M-74041 as a demand, and has provided claimant with copies of both requested I-64 forms. AAG Barbosa further states that he has requested a copy of claimant’s package list for the prior two years (presumably from the Department of Correctional Services), and will address that demand upon his receipt of the package list. As an initial matter, claimant’s motion to compel is premature. Claimant apparently never served a demand, and therefore defendant could not have provided the documents requested (CPLR 3124; Johnson v State of New York, Ct Cl, Dec. 4, 2006, Fitzpatrick, J., Claim No. 111987, Motion No. M-71922 [UID # 2006-018-541]; see generally Pettus v State of New York, Ct Cl, Nov. 13, 2007, Schaewe, J., Claim No. 112504, Motion Nos. M-73404, M-73624, M-73626, Cross Motion No. CM-73630).[5] Moreover, defendant treated Motion No. M-74041 as a demand, responded appropriately, and provided virtually all the requested documents. Defendant is in the process of obtaining the remaining item, which the Court foresees will be delivered to claimant in the near future.[6]

The Clerk of the Court is directed to file, as an amended claim, the “correct pertition [sic]” attached to claimant’s affidavit sworn to August 30, 2007, as of September 5, 2007. Motion No. M-73935 for permission to file an amended claim is denied as moot. Motion No. M-74041 to compel disclosure is denied in its entirety.

December 11, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims



The following papers were read on claimant’s motions:

Motion No. M-73935
1) Notice of Motion filed on September 5, 2007; Affidavit of Willie Spirles sworn to on August 30, 2007, and attached exhibit.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated October 23, 2007, and attached Exhibit A.


3) Claimant’s Affidavit in Response sworn to on November 1, 2007.


4) Claimant’s Amended Claim filed on November 16, 2007.

Motion No. M-74041
5) Notice of Motion filed on October 1, 2007; Affidavit of Willie Spirles sworn to on September 25, 2007.

6) Affirmation in Opposition of Roberto Barbosa, AAG, dated October 3, 2007, and attached Exhibit A.


7) Claimant’s Reply Affidavit sworn to on October 17, 2007.


Filed papers: Claim filed on July 18, 2007; Verified Answer filed on August 24, 2007.


[1]. The Court will treat Motion No. M-73935 as a motion to amend the claim, and will refer to it as such throughout this Decision and Order.
[2]. The Court will treat Motion No. M-74041 as a motion to compel disclosure and impose sanctions pursuant to CPLR 3126, and will refer to it as such throughout this Decision and Order.
[3]. Claimant’s affidavit of service of the motion papers was executed August 30, 2007, but does not contain the date that he actually mailed the motion papers to the Attorney General.
[4]. Claimant subsequently filed a document entitled “amended claim after 40 days” on November 16, 2007. That document was filed, without the Court’s permission, more than 40 days after service of the answer. Accordingly, the “amended claim after 40 days” is hereby deemed a nullity and dismissed.
[5]. In his reply affidavit, claimant asserts that he served a discovery demand on AAG Barbosa requesting the three documents at issue, and that AAG Barbosa had not complied as of October 17, 2007. Claimant further states that “[e]ven if [he] put the ‘wrong’ number to [the] discovery demand. The language in [his] demand makes it very ‘clear’ which claim [he is] talking about and with [AAG] Barbosa handling both of [his] claims. [I]t should be easy for him to place them in their proper manner.” While the Court anticipates that AAG Barbosa will endeavor to match claimant’s demands to the appropriate claim, claimant is reminded that it is ultimately his responsibility to affix the proper claim number to each submission filed with the Clerk of the Court and served on the Attorney General’s Office (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.5 [b], [c]). As claimant has been previously advised, “any documents, including motion papers, which do not set forth a claim number will not be filed and will be returned to him” (Spirles v State of New York, Ct Cl, Dec. 3, 2007, Schaewe, J., Claim No. 114139, Motion Nos. M-73985, M-73986, M-74021).
[6]. In any event, claimant failed to attach a copy of his discovery demand and an affidavit of its service on the Attorney General. Accordingly, claimant cannot establish that defendant failed to timely respond within the 20-day period as set forth in CPLR 3120 (2), and this motion could be denied on that basis alone.