New York State Court of Claims

New York State Court of Claims

LOPER v. THE STATE OF NEW YORK, #2002-019-556, Claim No. 104861, Motion No. M-65387


Synopsis


Claimant's motion to amend Demand for Bill of Particulars is denied.

Case Information

UID:
2002-019-556
Claimant(s):
TAMAR LOPER
Claimant short name:
LOPER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104861
Motion number(s):
M-65387
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
TAMAR LOPER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 29, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, a pro se inmate, requests various relief relative to his Demand for a Bill of Particulars dated October 18, 2001. The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
1. Claim, filed September 7, 2001.
2. Demand for Bill of Particulars, dated October 18, 2001.
3. DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-64390, filed February 21, 2002.
4. Notice of Motion No. M-65387, dated June 13, 2002, and filed June 20, 2002.
5. Affidavit of Tamar Loper, in support of motion, sworn to April 3, 2002, with attached exhibits.
6. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated July 8, 2002, and filed July 10, 2002.

The underlying claim relates to allegations of food tampering during Claimant's incarceration at Southport Correctional Facility (hereinafter "Facility") in early 2000. Claimant served a Demand for a Bill of Particulars dated October 18, 2001. On November 19, 2001, the State forwarded a letter to Claimant indicating that it was in the process of gathering the necessary information to appropriately respond to said Demand.


Claimant previously moved to compel a response to said Demand for a Bill of Particulars dated October 18, 2001. In response to that prior motion, the State indicated its need for additional time to locate the documents demanded. This Court found "[n]o prejudice to Claimant in allowing the State a reasonable amount of additional time to respond to the demands." (Loper v State of New York, Ct Cl, February 21, 2002, Lebous, J., Claim No. 104861, Motion No. M-64390, p 4). The State has since served on Claimant a Bill of Particulars dated March 8, 2002 to which the State attached copies of Claimant's inmate grievances from March of 2000.


Claimant now seeks various forms of relief relative to said Demand including permission to amend and/or supplement his original Demand; to verify his Demand; as well as to compel the State to provide copies of all 49 of his inmate grievances.


Claimant is permitted to "[a]mend the bill of particulars once as of course prior to the filing of a note of issue." (CPLR 3042 [b]). The functional equivalent of the filing of a note of issue, which is not required in a prisoner pro se case, is the scheduling of a date certain for trial. (22 NYCRR 206.12). Here, this matter has not been scheduled for trial. As such, Claimant does not need the Court's permission to make the proposed additions and/or deletions and may amend his Demand once as of course. With respect to Claimant's request for the additional inmate grievances, totaling 49 in all, the State properly requests that Claimant be required to pay the sum of .25 cents per page to reimburse the State for photocopying costs. The State has the right to require Claimant to pay reasonable copying costs of demanded discovery documents. (Gittens v State of New York, 175 AD2d 530). Of course, the parties may attempt to arrange reasonable alternatives, such as arranging an opportunity for Claimant to inspect such records with the understanding that in the event he desires actual copies of such documents after inspection that he will be required to pay reasonable copying costs. In any event, the parties are encouraged to resolve these and other future discovery disputes, if any, without the need for further Court intervention.


Consequently, for the reasons stated above, it is ORDERED that Claimant's motion, Motion No. M-65387, to amend his Bill of Particulars is DENIED.


July 29, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims