Claim, filed September 7, 2001.
Claimant's Demand for Bill of Particulars, dated October 18, 2001, and filed
October 22, 2001.
DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-64390, filed
February 21, 2002.
State's Response to Demand for Bill of Particulars, dated March 8, 2002, and
filed March 11, 2002.
DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-65387, filed
August 14, 2002.
DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-65763, filed
October 11, 2002.
Notice of Motion No. M-66059, dated October 22, 2002, and filed November 18,
Affidavit of Tamar Loper, in support of motion, sworn to October 28, 2002, with
Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated December
4, 2002, and filed December 6, 2002.
This is Claimant's fourth consecutive discovery motion relative to this Claim
which alleges food tampering during Claimant's incarceration at Southport
Correctional Facility (hereinafter "Facility") in early 2000. Claimant served
an unverified Demand for a Bill of Particulars dated October 18, 2001
Claimant's first discovery motion sought, among other things, to compel a
response to said Demand. The State requested additional time to respond. The
Court provided the State additional time to respond and denied Claimant's motion
relative thereto. (Loper v State of New York
, Ct Cl, February 21, 2002,
Lebous, J., Claim No. 104861, Motion No. M-64390, [UID No.
The State served a Verified Bill of Particulars dated March 8, 2002 which
included copies of Claimant's inmate grievances from March of 2000.
Claimant's second discovery motion sought permission to amend and verify said
Demand, plus sought photocopies of 49 of his own inmate grievances. This Court
held that Claimant did not need permission to amend his Demand pursuant to CPLR
3042 [b]. Additionally, the Court noted that to the extent Claimant requested
photocopies of certain materials he would have to pay reasonable photocopying
costs or arrange reasonable alternatives. (Loper v State of New York, Ct
Cl, August 14, 2002, Lebous, J., Claim No. 104861, Motion No. M-65387 [UID No.
Claimant's third discovery motion was simply an attempt to reargue his second
motion. Claimant's motion for reargument was denied. (Loper v State of New
York, Ct Cl, October 11, 2002, Lebous, J., Claim No. 104861, Motion No.
M-65763 [UID No. 2002-019-575]).
Claimant's fourth and current discovery motion is a continuing complaint about
the State's failure to disclose in general but particularly in relation to his
previously served Demand. Claimant's motion must be denied in all respects.
First, Claimant's reliance on CPLR 3101 (d) (2) is completely misplaced.
Second, to the extent that Claimant once again raises the subject of his Demand
for Bill of Particulars, this Court has previously addressed that subject in its
three prior Decisions & Orders. Moreover, in opposition the State has not
indicated a refusal to disclose, but rather insists that Claimant is responsible
for paying reasonable photocopying charges inasmuch as the requested documents
surpass 300 pages. As this Court previously stated in connection with
Claimant's second discovery motion, he is responsible for paying reasonable
photocopying costs or for arranging reasonable alternatives. (Loper v State
of New York, Ct Cl, August 14, 2002, Lebous, J., Claim No. 104861, Motion
No. M-65387 [UID No. 2002-019-556]). Finally, to the extent that Claimant's
motion can be construed as containing any original discovery demands, a motion
to the Court is not the proper mechanism for such a request. Rather, Claimant
must first pursue discovery through ordinary means under the various discovery
devices of Article 31 of the CPLR and may not seek relief under CPLR 3124 unless
and until he has served discovery demands in accordance with the CPLR and the
Uniform Rules for the Court of Claims and such demands are improperly rejected
or inadequately answered by the State.
Consequently, for the reasons stated above, it is ORDERED that Claimant's
motion, Motion No. M-66059, is DENIED in its entirety.