New York State Court of Claims

New York State Court of Claims

WELLS v. THE STATE OF NEW YORK, #2001-015-157, Claim No. 103803, Motion No. M-63294


Motion to produce pursuant to CPLR 3120 must precede motion to compel records and documents related to prison bunk design.

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:
Carl D. Wells, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order pursuant to Rule 3120 of the Civil Practice Law and Rules compelling DOCS personnel to produce records and other documents related to the design and construction of lockers and a double bunk bed identified as "C-3-TOP" at Oneida Correctional Facility, Rome, New York and to produce photographs of the dormitory cube is denied. The claim filed on February 9, 2001 seeks to recover damages for personal injuries allegedly sustained by the claimant on February 2, 2001 when he slipped and fell from a chair which he was using to alight from an upper bunk bed.

Defendant's attorney opposed the motion on the grounds that claimant failed to serve a request for production of documents prior to service of the motion to compel and that the motion itself is noncompliant with § 206.8 (b) of the Uniform Rules for the Court of Claims which requires that a motion relating to disclosure have annexed thereto a separate affidavit of good faith effort to resolve the particular discovery related issues raised by the motion[1]. Defense counsel also states in his opposing affirmation that defendant will inquire as to the knowledge of maintenance supervisor Panzica, produce the design plans if such exist and would order the requested photographs upon advance payment by the claimant. Defendant objected to clamant's remaining demands as vague and undeterminable.

Rule 3120 of the CPLR which is entitled "Discovery and production of documents and things for inspection, testing, copying or photographing", in relevant part, provides:
(a) As against party:

1. After commencement of an action, any party may serve on any other party notice:

(i) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test, or photograph any designated documents or any things which are in the possession, custody or control of the party served;
It is well established that "[t]he purpose of providing for the service of a notice for discovery rather than obtaining an order was to eliminate court applications" (Coffey v Orbachs, 22 AD2d 317, 319). Here claimant chose to move for an order compelling the defendant to supply certain documents and photographs which may or may not be in existence, or in the possession, custody or control of the defendant, without having first served a notice to produce pursuant to Rule 3120. The motion is, accordingly, denied.

June 12, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March, 2001;
  2. Affirmation of G. Lawrence Dillon dated April 2, 2001.

[1]During the pendency of this motion 22 NYCRR 206.8 of the Uniform Rules for the Court of Claims was amended to delete the requirement that an affidavit of good faith be annexed to the motion. The amendment now requires counsel for the parties to confer with the assigned judge prior to making a discovery related motion except those relating to prisoner pro se claims. The amendment dated March 22, 2001 provides that it is effective immediately.