New York State Court of Claims

New York State Court of Claims

MALLOY v. THE STATE OF NEW YORK, #2008-033-322, Claim No. 108930, Motion Nos. M-75364, M-75381, M-75753


Synopsis



Case Information

UID:
2008-033-322
Claimant(s):
ANTHONY A. MALLOY
Claimant short name:
MALLOY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108930
Motion number(s):
M-75364, M-75381, M-75753
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Anthony A. Malloy, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 24, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Anthony Malloy has filed three motions in regard to Claim No. 108930. The claim alleges that employees of defendant transferred claimant against his will to Downstate Correctional Facility in Fishkill, New York. Claimant further alleges that he was abused and humiliated during the transfer and defendant was trying to medicate him against his will. This occurred on July 15, 2003.

Claimant’s first motion (M-75364)[1] asks this Court to order defendant to supply discovery by way of evidence and testimony. Claimant makes 12 requests in his motion.


In opposition to claimant’s motion for discovery, defendant argues that the motion is premature as claimant has made no request of defendant yet.

While the Court recognizes that claimant has not made a discovery demand prior to the motion, the Court is also cognizant claimant is pro se and not fully aware of procedure for discovery. Thus, defendant is directed to supply answers, to the best of its ability, to requests 1 through 5 and 11 as to the lists requested by claimant. As to demands 1, 2 and 6 through 10, if claimant may make arrangements for depositions of any relevant witnesses, the cost of the transcripts shall be paid for by claimant.

Defendant avers that it does not have any videotapes requested by claimant. Defendant shall supply an affidavit from the custodian of records with the Correctional Facility that no videotapes requested by claimant exist.

Claimant’s second motion (M-75381)[2] seeks to have this Court put his case on “high alert of caution” (¶2 of claimant’s Affidavit in Support of motion). Defendant takes no position on claimant’s motion.

The Court knows of no such relief to grant claimant. This motion is denied.

Claimant’s third motion (M-75753)[3] seeks to compel defendant to turn over 25 videotapes. Defendant opposes claimant’s motion, stating that it is not in possession of videotapes requested by claimant.

Defendant shall supply an affidavit from the custodian of records with the Correctional Facility that no videotapes requested by claimant exist.

Therefore, it is ordered as follows:

With regard to claimant’s Motion No. M-75364, the defendant is directed to supply claimant with answers to requests 1 through 5 and 11. As to 1, 2 and 6 through 10, if claimant may make arrangements for depositions of any relevant witnesses, the cost of transcripts shall be paid for by claimant. Defendant is also to provide an affidavit from the custodian of records with the Correctional Facility that no videotapes requested by the claimant exist, if in fact they do not exist. Defendant is to provide all items to claimant within sixty (60) days of the filing date of this Decision and Order.

With regard to claimant’s Motion No. M-75753, defendant is to provide an affidavit from the custodian of records with the Correctional Facility that no videotapes requested by the claimant exist, if in fact they do not exist. Defendant is to provide all items to claimant within sixty (60) days of the filing date of this Decision and Order.

With regard to claimant’s Motion No. M-75381, the motion is denied.




December 24, 2008
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on claimant’s motion: Notice of Motion filed August 4, 2008; Affidavit in Support of the Notice of Motion of Anthony A. Malloy sworn to July 31, 2008 and filed August 4, 2008; Affirmation in Response to Claimant’s Motion of Glenn C. King, Esq. dated September 3, 2008 and filed September 8, 2008.
[2].The following papers have been read and considered on claimant’s motion: Notice of Motion dated August 3, 2008 and filed August 13, 2008; Affidavit in Support of Notice of Motion of Anthony A. Malloy sworn to August 6, 2008 and filed August 13, 2008; Affirmation in Response to Claimant’s Motion of Glenn C. King, Esq. dated September 3, 2008 and filed September 8, 2008.
[3].The following papers have been read and considered on claimant’s motion: Notice of Motion filed October 14, 2008; Affidavit in Support of Notice of Motion sworn to October 9, 2008 and filed October 14, 2008; Affirmation in Response to Claimant’s Motion of Glenn C. King, Esq. with annexed Exhibit A dated October 29, 2008 and filed October 30, 2008.