New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2002-019-548, Claim No. 105785, Motion Nos. M-65234, M-65320


Claimant's motions for an order directing the Court to arrange for photocopying of discovery documents; access to extra legal materials; and to encumber his account for extra photocopying and legal postage are denied; Court sua sponte dismisses portion of claim due to failure to comply with CCA 10 and 11.

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):
M-65234, M-65320
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 16, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This Decision & Order addresses two separate but similar motions made by Claimant, an inmate appearing pro se. First, Claimant moves for an order directing the Clerk of this Court to make photocopies of various exhibits and directing the appropriate officials to collect such costs in the manner provided by Penal Law 60.35 (5). Second, Claimant seeks an order granting him extra law library materials and writing pads, as well as an order encumbering his account for unlimited photocopying and legal postage. The State of New York (hereinafter "State") takes no position relative to these motions.

The Court has considered the following papers in connection with these motions:
1. Claim, filed March 20, 2002.
2. ORDER, Read, P.J., Claim No. 105785, filed April 5, 2002.
3. Verified Answer, filed April 12, 2002.
4. Notice of Motion No. M-65234, dated May 15, 2002, and filed May 21, 2002.
5. Affidavit of Jose Rivera, in support of Motion No. M-65234, sworn to May 17, 2002, with attachments.
6. Letter from Joseph F. Romani, AAG, to David B. Klingaman, Chief Clerk, dated May 31, 2002, and received June 3, 2002.
7. Notice of Motion No. M-65320, dated May 23, 2002, and filed June 3, 2002.
8. Affidavit of Jose Rivera, in support of Motion No. M-65320, sworn to May 29, 2002.

Claimant alleges that on June 30, 2001, a correction officer falsified a misbehavior report against him during his incarceration at Southport Correctional Facility. Thereafter, Claimant alleges he was disciplined by five separate restraint orders covering successive seven day time periods commencing June 30, 2001 and continuing through July 29, 2001. The Claim states that the subject misbehavior report was dismissed due to insufficient evidence on July 23, 2001. Claimant disputes the validity of the restraint orders covering the period of July 16, 2001 to July 22, 2001 and July 23, 2001 to July 29, 2001 for reasons not pertinent here. In sum, Claimant alleges three separate incidents of the State's misconduct including: (1) a false misbehavior report issued June 30, 2001; (2) an invalid restraint order for July 16, 2001 to July 22, 2001; and (3) an invalid restraint order for July 23, 2001 to July 29, 2001. Claimant served a Notice of Intention upon the Attorney General's office by certified mail, return receipt requested, on October 12, 2001. This Claim was filed with the Clerk of the Court on March 20, 2002. The State filed a Verified Answer on April 12, 2002, containing various affirmative defenses including a jurisdictional defense directed to the issuance of the misbehavior report on June 30, 2001. An Order has previously been issued by the Presiding Judge reducing the filing fee for this Claimant to $15.00 pursuant to Court of Claims Act 11-a (1). (Rivera v State of New York, Ct Cl., April 5, 2002, Read, P.J., Claim No. 105785).

Before proceeding to Claimant's motions, the Court will, sua sponte, address the fundamental issue of its jurisdiction to hear and determine this matter in the first instance. Upon review of these pleadings it is clear that the Claim asserts three separate incidents as outlined above. The State's Verified Answer contained an affirmative defense alleging, that "[a]s concerns the first cause of action from 6/30/01, that this Court lacks subject matter jurisdiction of the claim and personal jurisdiction over the the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act § § 10 and 11."[1] (State's Verified Answer, ¶ 5). There is no doubt here that the Notice of Intention was served October 12, 2001, which is more than ninety days after the June 30, 2001 incident. Moreover, the filing of the Claim was also beyond said ninety day period. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). As such, the portion of this Claim relating to the misbehavior report issued on June 30, 2001 must be dismissed as untimely under CCA 10 (3) and 11.[2]

1. Motion No. M-65234

Claimant asserts that he cannot afford the cost of multiple photocopies of various documents that he requires in order to: (1) properly respond to the State's Demand for Discovery and Inspection dated April 10, 2002; and (2) use as exhibits in support of a Reply to the State's Verified Answer. The fact that Claimant avows to be impoverished because he is incarcerated entitles him to no greater rights than a non-prisoner pro se litigant who does not have the funds to carry out all the normal steps of litigation, including discovery. (Gittens v State of New York, 175 AD2d 530). In the event an inmate is unable to afford the cost of photocopying, it would not be unreasonable for an inmate to transcribe by hand multiple copies of relevant papers for the purpose of filing and serving same. Additionally, the Court notes that Claimant's stated need to attach exhibits to a Reply to the State's Answer is equally lacking since the rules governing civil practice in the State of New York do not make provision for any sort of Reply to an answer, except where the defendant has made a counterclaim against the claimant which is not the case here. (CPLR 3011; 22 NYCRR 206.7 [a]). To the extent that the defendant disputes the allegations of the claim, it is assumed that Claimant does not agree with the Defendant's position and it is not necessary, or appropriate, for a Claimant to file a document indicating such disagreement.[3] In short, Claimant's motion requesting the Clerk of the Court provide him with photocopies of various exhibits is denied. The Clerk of the Court is directed, however, to return to Claimant the original exhibits that were attached to his motion papers apparently under the expectation that his motion would be granted.

2. Motion No. M-65320

This second motion seeks a similar type of relief as the first. Here, Claimant seeks an order granting him extra law library materials and legal writing pads, as well as an order encumbering his account for photocopying of whatever materials he submits to the prison law library and "[f]or any legal postage for any parcels, to be mailed out, addressed to this Court, and/or Defendant's attorney of record in this action."[4] (Notice of Motion). In addition to the allegations of insufficient funds asserted in relation to the first motion, Claimant further explains that he has three actions pending in Cayuga County, one in the Third Department, and is "researching, and/or filing, approximately ten (10) more." (Claimant's Affidavit in Support of Notice of Motion, ¶ 8).

This motion must be denied in all respects. With respect to Claimant's request for additional legal postage, the State already provides Claimant, as an inmate, five free first-class stamps weekly and will advance up to $20 for legal mail postage, if the inmate has insufficient funds. (7 NYCRR 720.8 (b) & part 721; Robbins v State of New York, Ct Cl, January 9, 2001, NeMoyer, J., Claim No. 102325, Motion No. M-62803). Based upon these regulations, an inmate should have adequate means to serve and file any papers related to this claim. Further, as previously indicated, with respect to the issue of his alleged need for photocopies, Claimant has the option of transcribing by hand multiple copies of relevant papers for the purpose of filing and serving same. Nor will this Court intervene on the issue of Claimant's access to law library materials and legal writing pads. (Gagne v State of New York, Ct Cl, November 30, 2001, Patti, J., Claim No. 98686, Motion No. M-63259; see also, Leach v Dufrain, 103 F Supp 2d 542 [authorities may regulate the time, place, and manner of library use]). Consequently, Claimant's second motion herein must be denied as well.

Accordingly, IT IS ORDERED, that Claimant's motions, Motion No. M-65234 and Motion No. M-65320, are DENIED, and

IT IS FURTHER ORDERED, that the Court, sua sponte, dismisses the portion of this Claim relating to the incident accruing on June 30, 2001. Consequently, Claim No. 105785 is DISMISSED IN PART.

July 16, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The State preserved this issue for review by raising, with particularity, the Claimant's failure to comply with CCA 11 (a) as its first affirmative defense in its Verified Answer. (CCA 11 [c]).
[2]The Notice of Intention was timely and properly served in relation to the two subsequent incidents regarding the restraint orders from July 2001.

[3]Where a defendant has asserted an affirmative defense in its answer, a claimant may move to strike the defense from the answer by way of a formal notice of motion, supporting affidavits and exhibits, and an affidavit of service of said papers upon the Attorney General.

[4]There is no attorney of record in this matter. Claimant is proceeding without counsel.