New York State Court of Claims

New York State Court of Claims

BINKLEY v. STATE OF NEW YORK, #2008-030-560, Claim No. 115465, Motion No. M-75442


Synopsis


Pro se inmate claimant motion to compel discovery denied. Claim alleges Sing Sing personnel in 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. Various documents provided by defendant on consent. Despite what is apparently a claim that is not justiciable in this court, no dispositive motion by defendant

Case Information

UID:
2008-030-560
Claimant(s):
DAVID BINKLEY
Claimant short name:
BINKLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115465
Motion number(s):
M-75442
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
DAVID BINKLEY, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 6, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion to compel


disclosure:

  1. Disclosure Motion [M-75442] by David Binkley, Claimant and attached papers
  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General and attached exhibits
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 claimant[1], 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 premature [see 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.[2] 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 taken.

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.

October 6, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. This is one of four (4) motions calendared by the Clerk since issue was joined on August 7, 2008. Three were marked submitted on September 17, 2008 [M-75442; M-75510; M-75457]. A fourth has been calendared for October 15, 2008 [M-75533].
[2]. Indeed in identical “Claim Supplement(s)” filed on July 24, 2008 and August 18, 2008 respectively Mr. Binkley adds complaints about treatment of Freedom of Information Law requests as well as his perceptions that the grievance process was fraudulent among other things.