Motion to compel disclosure denied. Issue not joined when motion made. Pro se inmate claimant did not serve demand on defendant nor is there an order to disclose extant. No materiality and relevance shown.
|Claimant short name:||KOEHL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||EDWARD KOEHL, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||December 18, 2009|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion to compel disclosure and for sanctions:
1,2 Notice of Motion; Affidavit in Support Compel Disclosure (CPLR 3124) & Sanctions (CPLR 3126) by Edward Koehl, Claimant and attached exhibit
3 Affirmation in Opposition by Barry Kaufman, Assistant Attorney General and attached exhibits
4 Reply Affidavit by Edward Koehl, Claimant
5-7 Filed Papers: Claim number 116905, Answer; Koehl v State of New York, Claim No. 116905, M-77062, CM-77177 (October 26, 2009, Scuccimarra, J.)
In his claim, Edward Koehl alleges nine causes of action premised upon allegedly invalid disciplinary proceedings and property loss and/or confiscation - specifically a hot pot - occurring in February and March 2009. By Decision and Order filed November 24, 2009 claimant's motion for default judgment was denied, and defendant's cross-motion to compel acceptance of its late answer and for permission to serve a supplemental answer was granted. [See Koehl v State of New York, Claim No. 116905, Motion Nos. M-77062, CM-77177 (unreported) (October 26, 2009, Scuccimarra, J.).] Such decision and order provided that the supplemental answer be served within thirty (30) days of the filing of the decision and order, without prejudice to any additional motion to dismiss.
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 an action, regardless of the burden of proof . . . "
When a party fails to respond in some fashion to a demand, the other party may make a motion to compel such as this one. Civil Practice Law and Rules §§3124, 3126. The party making the motion should append a copy of the demand at issue. Notably, disclosure demands - which are by nature documents served on another party - are required to be filed with the Chief Clerk of the Court of Claims. See 22 NYCRR §206.5(c).
Moreover, issue should generally be joined prior to making disclosure demands. As noted earlier, discovery of matter that is material and necessary is liberally allowed. Here, however, it is unclear how deposing a multitude of correctional personnel would serve to establish the limited causes of action justiciable in this Court. Additionally, the use of interrogatories, or a deposition on written questions administered by a third party empowered to administer oaths, is favored over an examination before trial conducted by an inmate litigant. [See Civil Practice Law and Rules §§3107, 3109, 3113, 3130]. Any costs associated with same are borne by the party making the demands. See 22 NYCRR §206.11 (k).
This motion was made by service on defendant on or about October 1, 2009 before decision was rendered on the prior motion for a default judgment. After careful review of the papers submitted on the present motion, the Court finds that the motion is premature in that the determination as to whether issue was joined had not been made, no demand preceded such motion, there is no order extant directing discovery, and it is ill-supported as to materiality and relevance under Civil Practice Law and Rules §3101 in any event.
Based on the foregoing claimant's motion [M-77261] is in all respect denied.
December 18, 2009
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims