New York State Court of Claims

New York State Court of Claims

LEWIS v. THE STATE OF NEW YORK, #2001-013-021, Claim No. 97758, Motion No. M-63722


Claimant's unopposed motion to compel the production of certain documents is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: GREGORY MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 28, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On August 15, 2001, the following papers were read on Claimant's motion for an order to compel the production of documents.
1. Notice of Motion and Supporting Affidavit of Marc Lewis ("Lewis Affidavit")

2. Affidavit in Opposition: none received

3. Filed papers: Claim; Answer

This is a claim to recover for personal property that Claimant alleges was lost by employees of the Department of Correctional Services (DOCS) on September 4, 1997, when Claimant was moved from his general population cell in Wende Correctional Facility and his property was packed up by correction officers. By this motion, Claimant seeks an order compelling Defendant to produce for inspection and/or photocopying the following:
Wende Correctional Facility package room list for 1996 and 1997

An incident report dated September 4, 1997

The video recording of Claimant's transfer to Special Housing Unit on the same date

The name of the officer who packed Claimant's property on that date

The Package Room officer's statement that packages in Claimant's name were
received while Claimant was at Wende Correctional Facility

The I-64 forms relating to Claimant, covering the entire period of time that Claimant was at Wende Correctional Facility, from his arrival in 1996 to his departure in 1997

Claimant has attached a notarized affidavit of service stating that copies of the motion papers were served on both the Court of Claims and the Attorney General. Defendant, however, has made no submission in response to the motion. Typically, when there has been no response to a motion by claimant, judges of this Court will, on their own initiative, contact the office of the Attorney General to determine if, in fact, the motion was served (see, Hop Wah v State of New York, 137 Misc 2d 751, 754). I have followed this policy in the past, but it appears that a pattern of non-response is developing. For claimants' motions returnable this month alone, Defendant has failed to respond to almost half of them. In all but one of these, claimant's submissions included an affidavit stating that copies of the motion papers had been served on Defendant, and in all cases, the Chief Clerk of the Court sent Defendant a copy of his letter acknowledging receipt of the motion papers, assigning a motion number, and fixing the return date of the motion. Defendant therefore knew, at a minimum, that a motion had been filed, the name of the Claimant and, where appropriate, the number of the claim to which the motion related, the number assigned to the motion, and the motion's return date. Even if a claimant's affidavit of service is in error, therefore, a letter from Defendant to the Court would be prudent and warranted. Consequently, at least in those cases where the motion is accompanied by an appropriate affidavit of service executed by the claimant and where the Attorney General has been sent a copy of the Chief Clerk's receipt letter, I will not make further inquiry, simply deciding the motion without any input from Defendant.

In the instant motion, Claimant's discovery demands appear reasonable and appropriate, except that the first request -- for 1996 and 1997 -- may be redacted to show only entries related to Claimant and to entries on or before September 4, 1997. Accordingly, Claimant's motion is granted and Defendant is directed to produce the described items within thirty (30) days of the date of this decision and order.

September 28, 2001
Rochester, New York

Judge of the Court of Claims