New York State Court of Claims

New York State Court of Claims

MICOLO v. THE STATE OF NEW YORK, #2008-010-018, Claim No. 110324, Motion No. M-75029


Synopsis


Inmate claimant’s motion for a court order compelling an expert medical examination and report denied.

Case Information

UID:
2008-010-018
Claimant(s):
MARCUS A. MICOLO
Claimant short name:
MICOLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110324
Motion number(s):
M-75029
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
MARCUS A. MICOLOPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 27, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant’s motion for a court order compelling an expert medical examination and report:
Claimant’s Motion For Court Order For Examination...............................................1

Attorney’s Affirmation in Opposition and Exhibits...................................................2


Specifically, claimant seeks “an examination (full) of [claimant’s] face. This examination will include TMJ X-rays and/or Catscans of face” (Claimant’s Motion For Court Order For Examination, ¶ 8). Claimant also requests that he be examined by “an impartial Maxillo-facial expert who will produce a credible report of his/her findings” (Claimant’s Motion For Court Order For Examination, ¶ 9).

By letter to defendant dated January 10, 2008, claimant requested the same relief he seeks in this motion and by letter dated April 3, 2008, defendant properly denied claimant’s request (Affirmation in Opposition, Ex. A). Moreover, by this Court’s Decision and Order filed-stamped April 10, 2008 (M-74505) the very same relief sought by claimant was denied, i.e. the Court stated, “[t]here is no legal authority which requires the State to pay the litigation costs in claims brought against the State (see Gittens v State of New York, 175 AD2d 530; Brabham v State of New York, 13 Misc 3d 1222[A]). Moreover, Civil Rights Law §79 specifically provides that ‘the state shall not be liable for any expense of or related to any such action or proceeding’ brought by an inmate in a State correctional institution.”

Accordingly, claimant’s motion is DENIED.

Claimant is cautioned that frivolous motions, such as this, are a waste of judicial time and resources and could subject claimant to sanctions.


June 27, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims