3-7 Filed papers: Claim, Answer, Claim Supplement (filed July 24, 2008), Answer
to Claim Supplement, Claim Supplement (filed August 18, 2008)
David Binkley alleges in his claim that defendant’s agents at Sing Sing
Correctional Facility [Sing Sing] - specifically the package room and later the
grievance and/or media review committees - wrongfully withheld from his
possession Japanese language flash cards purchased for educational and religious
purposes. The package room advised claimant that the cards would not be provided
to him on February 1, 2008, and claimant pursued grievance claims thereafter.
Such denial, he asserts, interfered with his right to free exercise of his
religion. He seeks “incidental relief in the form of order to issue
religious/educational ‘books,’ defined by International Standard
book Numbers as such for all intents and purposes under Federal and State law,
restoring claimant’s liberty, property and due process rights . . . [and]
compensatory and/or punitive damages: $100,000.00. [Claim No. 115465,
¶¶3 and 7]. He states that on April 30, 2008 the Central Office
Review Committee [CORC] issued its decision denying the grievance he filed with
regard to the materials. [Claim No. 115465, ¶3]. In copies of letters
claimant wrote in pursuit of his grievance, that are attached to the claim filed
in the Court of Claims, claimant indicates that the materials were returned to
his mother. [Letter to Central Office Media Review Committee from David Binkley
dated March 10, 2008].
The present motion, entitled “Disclosure Motion” by
, is essentially his demand for
disclosure served on defendant and filed with the clerk of the court as required
by 22 NYCRR §206.5(c). As a motion to compel such disclosure it is
Civil Practice Law and Rules §3124], and denied
summarily on that ground alone.
Civil Practice Law and Rules §3101, setting forth the scope of disclosure
in a civil case and applicable in the Court of Claims [see Court of
Claims Act §9(9)], provides in pertinent part that “[t]here shall be
full disclosure of all matter material and necessary in the prosecution or
defense of any action, regardless of the burden of proof . . .”
What is troubling here is that it is difficult to see how this claim is at all
justiciable in this Court.
The Court cannot
provide declaratory relief except under very limited circumstances [Court of
Claims Act §9 (9-a)], and cannot grant punitive damages. Sharapata v
Town of Islip
, 56 NY2d 332, 339 (1982). This Court is not the venue for
asserted violations of the United States Constitution [42 USC §1983], and
may be the venue for constitutional torts related to the New York State
Constitution only in very limited circumstances not articulated here. See
generally Brown v State of New York
, 89 NY2d 172 (1996).
Claimant’s issues would appear to be more properly addressed in the
context of an Article 78 proceeding commenced in Supreme Court. There is no
dispositive cross-motion before the court, however, thus no action can be
With regard to the discovery requests that are the subject of this motion,
defendant has responded by forwarding documents to claimant with regard to some
of the requests, and objecting to others, while reserving the right to
supplement its response in the event additional information becomes available.
The following documents were provided: Letter to David Binkley from Karen
Bellamy dated May 30, 2008; Letters from David Binkley to COMRC dated March 10,
2008 and April 14, 2008; Attendance sheet of CORC hearing held concerning
SS-44145-08; Letter from Claimant to Commissioner Brian Fischer dated June 12,
2008; Letter from Karen Bellamy to Claimant dated June 24, 2008; Sing Sing mail
log entries related to Claimant for the months of May, June and July 2008.
[Affirmation in Opposition by Elyse J. Angelico, Exhibits F, B, C, D, E].
Although Civil Practice Law and Rules §3126 allows a Court to impose
sanctions for a party’s willful failure to disclose information that a
Court finds should have been disclosed, or for a failure to obey an order to
disclose, the State has not refused to obey a court order, as there is no order
extant directing disclosure (as noted earlier). See Civil Practice Law
and Rules §3124. In the interest of judicial economy however, and in view
of the defendant’s response, the Court nonetheless addresses the more
substantive aspects of these demands.
The demand for all correspondence or email between claimant and “K.
Bellamy, L. Hollmen, F. Robinson, S. Kaplan and other parties” is
overbroad. [Disclosure Motion, ¶3]. With regard to the demand for
“minutes” of a CORC hearing on SS-44145-08, defendant’s
representation that it is determining whether such minutes exist and will
produce them if available is acceptable, and defendant is directed to advise
claimant of its determination and the cost for copying same. [Ibid.
¶ 4]. The request for “diversity management complaints staff/inmates
against named as in request 2” is denied as overly broad, vague and
ambiguous. [Ibid. ¶6]. The request for “CORC stamped appeal
document 4/4/08, Albany files” [ibid. ¶9] is vague and
ambiguous, however defendant appears to have supplied the complete grievance
packet in its response to a companion motion thus the issue is moot. [See
Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General,
¶13, referencing her Affirmation in Opposition to M-75510]. All other
document requests in the present motion have either been responded to or
appropriately objected to.
Finally, claimant seeks examinations before trial of Karen Bellamy, Central
Office IGP; Linda Hollmen, Central Office Media Review; Frank Robinson, Sing
Sing IGP; John/Jane Doe, Sing Sing Senior Mail Clerk. [Disclosure Motion,
unnumbered paragraph 10 (1) through (4)]. Certainly, matter that is material and
necessary may be disclosed pursuant to the myriad of disclosure devices
available pursuant to Civil Practice Law and Rules §3102(a). State
employees are nominally available for deposition, although generally the State
or other entity initially “. . . has the right to determine which of its
officers with knowledge of the facts may appear for pretrial examination
(D’Ulisse v Town of Oyster Bay, 81 AD2d 825; Consolidated
Petroleum Term. v Incorporated Vil. of Port Jefferson, 75 AD2d 611 . . .
” Colicchio v City of New York, 181 AD2d 528, 529 (1st Dept 1992).
Since no cross-motion for a protective order or other cross-motion has been
made, however, the materiality and relevance of the sought depositions of
specific state employees is not before the court.
As noted before, however, the proper method for obtaining disclosure generally
is by stipulation or on notice without leave of the court and not by way of a
motion in the first instance [see generally Civil Practice Law and Rules
§3102(b)], unless the person sought to be deposed is a “person
confined under legal process,” such as a prison inmate. Civil Practice Law
and Rules 3106 (c). Claimant needs to comply with Civil Practice Law and Rules
3106(d), concerning naming a specific employee, as does defendant. Thus the
motion is denied in any event because it is unnecessary.
Claimant’s pursuit of discovery must be carried out at his own expense.
Gittens v State of New York, 175 AD2d 530, 531 (3d Dept 1991); Mapp v
State of New York, 69 AD2d 911 (3d Dept 1979]) Court of Claims Act §18.
While it is certainly his prerogative to pursue matters by the disclosure
methods he chooses to utilize, the information he wants might be more easily
(and economically) obtained by properly framed interrogatories. See Civil
Practice Law and Rules §3130.
Accordingly, based on the foregoing, claimant’s motion [M-75442] to
compel discovery is denied.