Claimant's motions for poor person status and to compel discovery were both denied.
|Claimant short name:||SEBURA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-95956, M-95957|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Cameron Sebura, Pro Se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||November 9, 2020|
|See also (multicaptioned case)|
In motion No. M-95956, claimant, a pro se inmate, seeks poor person status pursuant to CPLR 1101 (d) and an Order compelling defendant to produce certain reports and documents in its possession. In motion No. M-95957 claimant seeks poor person status and the imposition of spoliation sanctions for the purported destruction of evidence.
In a claim filed July 6, 2020, claimant alleges he was the victim of the use of excessive force by correction officers on June 25, 2018.
Preliminarily, claimant's request for poor person status is denied in both motions as claimant received the benefit of a reduced filing fee pursuant to an Order dated August 25, 2020 and, at this juncture, there are no other costs associated with prosecuting the claim.
Claimant's motion to compel discovery must be denied (motion No. M-95956) as a necessary prerequisite to a motion to compel disclosure is the service of a disclosure notice (CPLR § 3102 [a], [b]). A motion to compel compliance or a response is then appropriate "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand" (CPLR 3124). Here, claimant's motion to compel defendant's compliance with discovery is premature. Although claimant did not support his motion with a copy of the discovery demands to which he seeks a response, review of the papers filed in the Office of the Clerk of the Court of Claims indicates that the motion was filed before the service of his discovery demands. Claimant must first serve defense counsel with a demand for discovery and, in the event of its failure to appropriately respond, he may move to compel compliance pursuant to CPLR 3124.
Claimant's motion for the imposition of a spoliation sanction (motion No. M-96957) must also be denied. The spoliation about which the claimant complains consists of the withholding of certain information in response to a request under the Freedom of Information Law (FOIL). Claimant may seek judicial review of a FOIL response in the Supreme Court pursuant to CPLR article 78, a matter which is beyond the jurisdiction of this Court (Court of Claims Act §§ 8 and 9; Public Officer Law § 89  [b]).
Based on the foregoing, both the aforementioned motions are denied.
November 9, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
Motion No. M-95956
Motion No. M-95957