New York State Court of Claims

New York State Court of Claims
WEEMS v. THE STATE OF NEW YORK, # 2010-015-106, Claim No. 115306, Motion Nos. M-77168, M-77169


Pro se inmate's motion for paper discovery and to take the depositions of non-party witnesses was denied.

Case information

UID: 2010-015-106
Claimant(s): KEVIN WEEMS
Claimant short name: WEEMS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115306
Motion number(s): M-77168, M-77169
Cross-motion number(s):
Claimant's attorney: Kevin Weems, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Kent Sprotbery, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 15, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


In two separate motions, claimant, a pro se inmate, moves for Orders "to obtain certain material and things, prepared for trial" (Motion No. M-77169) and compelling the depositions of non-party inmates Jake Winters (07B3434), Hector Rodriguez (02A2404), and individuals identified as Williams (07A4515) and Butler (06A2531) (Motion No. M-77168).

The facts alleged in the claim are set forth at length in this Court's prior Decision and Order, dated February 3, 2009, which decided claimant's prior motion for an order compelling the deposition of non-party inmate Jake Winters and other non-party inmates identified as Meredith and Queens. Suffice it to say, the claim is based upon a series of events beginning March 5, 2008 when, during the course of moving the claimant's belongings from one cell to another, Correction Officer Pereira informed another inmate, Jake Winters, that claimant was under investigation for raping his cellmate. Despite a medical restriction on the claimant's ability to lift and carry, claimant alleges that correction officers directed him to carry his own belongings, called him derogatory names, assaulted him, and that some of his personal property, including a television set, was stolen. In the days and weeks which followed, claimant alleges he was falsely accused of disciplinary violations, harassed by correction officers and assaulted by other inmates under the supervision of Correction Officer Pereira.

The Court will first address the claimant's discovery motion. Claimant requests an Order to obtain various documents denominated in the motion papers as items "A" - "Z". However, he fails to indicate that a proper demand for the documents was served upon the defendant or otherwise support the motion with a copy of the demand. A necessary prerequisite to a motion to compel discovery is the service of a demand. In this regard CPLR 3124 states: "If a person fails to respond to or comply with any request, notice, interrogatory, demand . . . the party seeking disclosure may move to compel compliance or a response." Claimant has failed to establish that any such demand has been served on the defendant. In this regard, defense counsel states in paragraph "3" of his affirmation in opposition to the motion that "Claimant has not served a Demand for Discovery and Inspection requesting the information outlined in Claimant's Motion." Claimant should first serve a demand for discovery of those items which are "material and necessary in the prosecution or defense of an action" (CPLR 3101[a]; 3120). In the event the defendant fails to timely or adequately respond, a motion to compel discovery pursuant to CPLR 3124 would then be the appropriate remedy. Claimant should be aware, however, that to the extent he seeks "material prepared for trial or litigation", as stated in his motion, such demands are generally privileged (see CPLR 3101 [d] [2]).

Claimant requests, once again, an Order compelling depositions of non-party inmates with respect to various aspects of his claim. The request for an Order to compel the deposition of inmate Winters was previously denied because the claimant failed to establish that his testimony was both material and necessary to the prosecution of his claim and could not be obtained from other sources (see Weems v State of New York, Ct Cl, February 3, 2009 [Claim No. 115306, Motion No. M-75887], Collins, J., citing, inter alia, CPLR 3101 [a] [4]; Cerasaro v Cerasaro, 9 AD3d 663 [2004]; Sand v Chapin, 246 AD2d 876 [1998]). It was noted in this regard that inmate Winters testified on claimant's behalf at a disciplinary hearing and although his testimony may be material, it did not appear to be necessary because it could be reasonably obtained from another source, i.e., by obtaining a copy of the hearing transcript. Claimant has failed to establish grounds for reargument or renewal of this aspect of the prior Order. Viewed as a motion for reargument, the motion is untimely (CPLR 2221 [d] [3]) and, in any event, fails to establish that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see CPLR 2221 [d] [2]). Viewed as a motion for renewal, claimant failed to establish new facts not offered on the prior motion or a change in the law that would change the prior determination (CPLR 2221 [e] [2]). While the claimant states that inmate Winters, his cellmate during the relevant time period, is a witness to the various deprivations he endured at the hands of correction officials, including the loss of electricity and working plumbing in their cell, he failed to establish through the submission of the hearing transcript that a deposition is necessary. As stated by the Court in Price v State of New York, (4 Misc 3d 1008 [A], *3 [2004]):

" '[S]omething more than mere relevance or materiality must be shown to obtain disclosure from a nonparty witness' (Fraser v Park Newspapers of St. Lawrence, Inc., 257 AD2d 961, 962 [3d Dept 1999]; see also Jira v Levin-Epstein, 172 AD2d 495 [2d Dept 1991]). To make the necessary showing, the party seeking permission to depose a nonparty inmate should spell out (or provide an affidavit establishing) the anticipated testimony; establish that the information the witness possesses is somehow unique and not merely cumulative to what claimant will relate and/or what is recorded in any documents concerning the incident, and establish that the information cannot be obtained from another source."

Claimant also requests non-party depositions of inmates Butler, Williams and Rodriguez to establish his ownership and possession of a black and white television, regarding the loss of which he seeks to hold the defendant responsible. Claimant additionally contends that Butler witnessed two inmates throwing buckets of mop water mixed with urine and feces on the claimant and his personal property.

Butler and Williams both testified at the claimant's disciplinary hearing and the claimant has failed to establish why the availability of the hearing transcript does not obviate the need for a deposition. To the extent the claimant asserts that Williams and Butler "were never questioned to the fact that plaintiff did possess or have a television set in his cell E-8-38", his ownership of the television can be established through other less intrusive means such as a permit for the possession of the televison, which claimant admits was issued (see claimant's affidavit in support 12 and 13). Claimant failed to establish the need for a non-party deposition of inmate Rodriguez for this same reason.

Based on the foregoing, claimant's motion for discovery (Motion No. M-77169) and his motion to take the depositions of certain non-party witnesses (Motion No. M-77168) are both denied(1) .

January 15, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-77168

  1. Notice of motion dated September 5, 2009;
  2. Affidavit of Kevin Weems sworn to September 5, 2009 with attachments;
  3. Reply of Kent B. Sprotbery dated October 28, 2009.

Motion No. M-77169

  1. Notice of motion dated September 5, 2009;
  2. Affidavit of Kevin Weems sworn to September 5, 2009 with attachments.
  3. Reply of Kent Sprotbery dated October 28, 2009.

1. Notably, claimant is not foreclosed from moving for the issuance of a judicial subpoena compelling the attendance of a non-party witness at trial. Any such application should be supported by proof establishing both the relevance of and necessity for the non-party witness testimony.