        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1209
CA 12-01352
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


MANUEL MARTINEZ, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 119899.)
(APPEAL NO. 1.)


MANUEL MARTINEZ, CLAIMANT-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK K. WALSH OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Renee Forgensi
Minarik, J.), entered May 16, 2012. The order denied the motion of
claimant to compel defendant to send him to an orthopaedic specialist.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant, an inmate at a correctional facility,
commenced this action to recover damages arising from a slip and fall
accident in which he allegedly injured his knee, and from his
subsequent medical treatment. In appeal No. 1, he appeals from an
order denying his motion to compel defendant to send him to an
orthopaedic specialist for, inter alia, a magnetic resonance image
(MRI) of his knee. In appeal No. 2, he appeals from an order granting
defendant’s cross motion for a protective order relieving it from the
responsibility of responding to claimant’s interrogatories.

     Contrary to claimant’s contention in appeal No. 1, we conclude
that the Court of Claims did not abuse its discretion in denying his
motion for a court-ordered MRI. Specifically, claimant contends that
the court was required to order an MRI because defendant has a duty to
provide medical treatment to him based on his status as a prison
inmate. That contention, however, must be raised in Supreme Court in
a CPLR article 78 proceeding (see e.g. Matter of Wooley v New York
State Dept. of Correctional Servs., 61 AD3d 1189, 1189-1190, affd 15
NY3d 275, rearg denied 15 NY3d 841; Matter of Scott v Goord, 32 AD3d
638, 638-639), not in the Court of Claims as part of an action for
money damages. Furthermore, although the Court of Claims may order
certain equitable relief incidental to a money judgment (see Zutt v
State of New York, 50 AD3d 1131, 1132), there has been no judgment or
other resolution in claimant’s favor that would permit the relief he
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                                                         CA 12-01352

seeks at this juncture of the litigation. Insofar as claimant seeks
an order directing defendant to pay for an MRI as part of the
discovery process in this litigation, we note that the Court of Claims
may not direct defendant to pay the litigation costs of any party (see
Court of Claims Act § 27; Shell v State of New York, 307 AD2d 761,
762, lv denied 1 NY3d 505; Gittens v State of New York, 175 AD2d 530,
530-531).

     Contrary to claimant’s contention in appeal No. 2, we conclude
that the court properly granted defendant’s cross motion seeking a
protective order with respect to claimant’s interrogatories. Although
a deposition pursuant to CPLR 3106 (b) and discovery and inspection
pursuant to CPLR 3120 (1) “may be sought against [a] nonparty witness
as well as against a party, the interrogatory under CPLR 3130 (a) is
available only against a party” (Patrick M. Connors, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3130:1).
Here, claimant directed the interrogatories to nonparty employees of
defendant, and the court therefore properly issued the protective
order (see Carp v Marcus, 116 AD2d 854, 856).




Entered:   November 15, 2013                   Frances E. Cafarell
                                               Clerk of the Court
