New York State Court of Claims

New York State Court of Claims
DOLBERRY v. THE STATE OF NEW YORK, # 2017-040-133, Claim No. 129253, Motion No. M-90881

Synopsis

Pro se Claimant's Motion for a telephone conference denied.

Case information

UID: 2017-040-133
Claimant(s): ANDRE DOLBERRY
Claimant short name: DOLBERRY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129253
Motion number(s): M-90881
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Andre Dolberry, Pro Se
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
Third-party defendant's attorney:
Signature date: October 31, 2017
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, the Motion of pro se Claimant, Andre Dolberry, for a telephone conference is denied.

This pro se Claim, which was filed in the office of the Clerk of the Court on February 1, 2017, alleges that, on August 18, 2016, while incarcerated at Franklin Correctional Facility, Claimant was assaulted by four inmates as a result of the State's failure to properly supervise them. The Claim also asserts that Claimant lost some of his personal property when, after the assault, he was transferred to the Special Housing Unit.

In his Motion papers, Claimant asserts that he is seeking a conference for a preliminary hearing and to have Defendant comply with the discovery rules.

As a preliminary matter, a motion directing a conference is not required. A conference can be requested by simply writing to the Court. In any event, Claimant's request for a conference is denied, as the Court determines that it would be neither helpful nor necessary (Uniform Rules for the Court of Claims [22 NYCRR] 206.10[e]). First, the Court does not know what Claimant is referring to when he requests a "preliminary hearing." This is a civil matter, not a criminal matter, where preliminary hearings are often held. Second, Claimant asserts that he wants Defendant to comply with the discovery rules. However, as the Court has advised Claimant on a number of occasions in connection with other motions, he is the one who has failed to comply with CPLR 3120(1), which provides, in pertinent part, that, after commencement of an action, a party may serve upon another party a NOTICE TO PRODUCE designated documents or any other things in the possession or control of the party being served. However, the party seeking discovery, here, Mr. Dolberry, must SERVE A DISCOVERY DEMAND UPON THE OTHER PARTY (IN THIS CASE, THE ATTORNEY GENERAL AS COUNSEL FOR DEFENDANT) AND DESIGNATE THE ITEMS HE IS SEEKING. In other words, Claimant first must make his request DIRECTLY to the Attorney General to produce the documents or information he seeks. After he has received the State's response, or the specified time for a response has passed, if Claimant is dissatisfied with the response he receives, only then may he properly make a motion for the Court to compel Defendant to comply or respond to the discovery request. In this case, just as in several prior instances, Claimant has failed to establish he has complied with these requirements.

Therefore, Claimant's Motion for a telephone conference is denied.

October 31, 2017

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's Motion for a telephone conference:

Papers Numbered

Notice of Motion and Statement in Support

and Exhibit attached 1

Papers Filed: Claim, Answer