Opinion
# 2017-038-528 Claim No. 119919 Claim No. 125184 Motion No. M-89415
03-28-2017
DEANDRE WILLIAMS v. STATE OF NEW YORK (1)
DEANDRE WILLIAMS, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Claimant's motion for trial preference in the interest of justice denied. Claimant has established that he has a severe visual impairment, but he has not demonstrated that such is progressive or that he is in imminent danger of losing his eyesight.
Case information
| UID: | 2017-038-528 |
| Claimant(s): | DEANDRE WILLIAMS |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119919 & 125184 |
| Motion number(s): | M-89415 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DEANDRE WILLIAMS, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 28, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The caption has been amended to reflect the State of New York as the only proper defendant.
Decision
Claimant, an individual who is incarcerated in a State correctional facility, has filed claim number 119919, in which he seeks money damages for lost items of personal property, and claim number 125184, which seeks monetary compensation for time spent in a Special Housing Unit after a disciplinary penalty was administratively reversed. Claimant moves for a trial preference for both claims. Defendant opposes the motion.
Claimant's unsworn submission asserts that he is severely visually impaired and that he is losing his vision, and he requests that trials on his claims be scheduled within 90 days (see Williams Affidavit, ¶¶ 2,3). Claimant's submission includes an ophthalmological record that indicates that claimant has a "Severe Visual Impairment" (id. [11/10/15 Eye Record]).
Although claimant's submission is styled as an "affidavit" and he purports to "affirm" the statements contained therein, it lacks evidentiary value as it is not sworn, and the document is not properly an affirmation in lieu of affidavit as claimant is a party to the action (see CPLR 2106).
Claimant's submission does not state the express statutory basis for his request, but it is clear that he is seeking a trial preference in the "interests of justice" (CPLR 3403 [a] [3]). Such a trial preference "should only be granted where circumstances are sufficiently unusual and extreme to justify the extraordinary privilege, since the granting of a preference represents a favoring of one case over another" (LaPorta v Fretto Enters,, 100 AD2d 713, 713 [3d Dept 1984]). There is no rubric within which to consider such applications, as "[e]ach case must essentially be decided on its own facts rather than by adherence to a rigid set of prescribed rules" (id.), and "[w]hether the interests of justice will be served by the granting of a preference rests within the discretion of [the Court]" (Nold v City of Troy, 94 AD2d 930, 930 [3d Dept 1983]).
Claimant's prior motion seeking a trial preference for these claims was recently denied (see Williams v State of New York, UID No. 2016-038-564 [Ct Cl, DeBow, J., Oct. 3, 2016]), and this motion will be denied on similar grounds. Claimant's unsworn submission demonstrates that he is severely visually impaired, but it does not demonstrate the need for trial preferences because it does not establish that his impairment is progressive, or that he is in imminent danger of losing his vision (see Bernard v Hyman, 155 AD2d 403, 403 [2d Dept 1989] [trial preference in interests of justice improvidently granted where medical report did not indicate imminent danger of plaintiff's death]). Nor does claimant describe any "difficulties that he would encounter if the claims are not given a trial preference. While the Court is not unsympathetic to claimant, his submission on this motion does not demonstrate his entitlement to the extraordinary privilege of a trial preference" (Williams v State of New York, supra). Accordingly, it is
ORDERED, that claimant's motion number M-89415 is DENIED.
March 28, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 119919, filed June 2, 2011; (2) Verified Answer, filed June 10, 2011; (3) Claim number 125184, filed October 29, 2014; (4) Verified Answer, filed December 8, 2014; (5) Notice of Motion, dated October 21, 2016; (6) "Affidavit" of DeAndre Williams in Support, "Affirmed" October 18, 2016, with Exhibit; (7) Affirmation of Douglas R. Kemp, AAG, in Opposition, dated November 30, 2016.