New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-095, Claim No. 115128, Motion No. M-75301


Claimant's motion to compel discovery was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 20, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves to compel a response to his demands for discovery. The claim alleges the following:
"I charge the [D.O.C.] with the deliberate indifference to the training, supervising, and discipling employees of (D.O.C.) and has created a (policy) and (custom) to enhance minor-infractions see: chap V 251-1.5 (minor infractions) to tier threes, which must be (serious) prison infractions see Title 7 280.2 (B).

This [practice] is so (severe) and (wide-spread) causing (black) inmates to be confined in (SHU) or (keep-lock) for allegations which could be resolved by warning or reprimand to endure psychological torment and torture, which is needless and unnecessary.

This (policy) and (custom) is enforced as a (law) when in fact (volative) of established law and (due process) . . .

Plaintiff was issued a tier three for (harassment) for writing [invective] words on a Decision and Order, directed toward a Capt . . . one time (harassment) must be (persistent) . . ."[1]

In support of his motion claimant submits a copy of his demand for discovery dated May 25, 2008. Notably, claimant failed to submit an affidavit of service of the demand together with his motion. Although a notation stating "[t]his is my second good-faith effort" appears at the top of the claimant's demand, defense counsel states that these demands were not served upon the Attorney General prior to the making of the motion and argues, in any event, that all of the demands are objectionable.

The demands seek the following:
"1. The complete investigation by Cap't Coveny

2. Cap't Coveny "criminal rap sheet" for [credibility] and [veracity]

3. Cap't Wenderlich "criminal rap sheet" for [credibility] and [veracity]

4. Lt. Armstrong's "criminal rap sheet for [credibility] and [veracity]

5. [All] and [any] complaints lodged against Cap't Covey, Cap't Wenderlich, and Lt. Armstrong to prove the (policy), (custom), (pattern), and (practice) of issuing [frivilious] misbehavior reports and excessive and harsh sentences, motivated by (racism)

6. [All] and [any] misbehavior reports [illegible] by Lt. Armstrong, to prove the (policy) and (custom), (pattern) and (practice) of [illegible] minor-infractions to tier three's (3)

7. (Any) and (all) directives, rule's or ordinances which stipulate what (constitute) tier three's

8. (Any) and (all) directives, rules or ordinances which stipulate tier two's (2)

9. Are any of the above named person's members of the Klu-Klux-Klan (K.K.K.) or any other white supremacist organization(s)"

CPLR 3101 provides for the disclosure of all items "material and necessary in the prosecution or defense of an action". The Court of Appeals has interpreted these words liberally to require the disclosure "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Although these discovery provisions are liberally construed, " '[u]nder our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party' " (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998], quoting O'Neill v Oakgrove Constr., 71 NY2d 521, 529 [1988], rearg denied 72 NY2d 910 [1988]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740,747 [2000]). It is therefore incumbent upon the party seeking disclosure to demonstrate that the discovery sought " 'is reasonably calculated to lead to the discovery of information bearing on the claims' " (Vyas v Campbell, 4 AD3d 417,418 [2004], quoting Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]).

Guided by these basic principles the Court agrees that all of the demands are objectionable as being either insufficiently specific, overbroad, irrelevent or requesting documents which are a matter of public record (Id.; see also Cabellero v City of New York, 48 AD3d 727 [2008]; Rush v Insogna, 119 AD2d 879 [1986]). The demand is objectionable on the additional ground that it is procedurally defective in that it failed to include a copy of the affidavit of service of the demand.

Based on the foregoing, the claimant's motion to compel disclosure is denied.

November 20, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 29, 2008;
  2. Unsworn Affidavit/affirmation of James Pettus dated July 29, 2008;
  3. Claim filed April 16, 2008;
  4. Affirmation of Glenn C. King dated August 4, 2008 with exhibit.

[1].All quotations were taken directly from the claim and claimant's discovery demands.