New York State Court of Claims

New York State Court of Claims

LOPER v. THE STATE OF NEW YORK, #2002-019-599, Claim No. 104861, Motion No. M-66059


Synopsis


Claimant's fourth discovery motion is denied.

Case Information

UID:
2002-019-599
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-66059
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:
December 16, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, a pro se inmate, makes this discovery motion under the auspices of CPLR 3101 (d) (2). 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. Claimant's Demand for Bill of Particulars, dated October 18, 2001, and filed October 22, 2001.
  3. DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-64390, filed February 21, 2002.
  4. State's Response to Demand for Bill of Particulars, dated March 8, 2002, and filed March 11, 2002.
  5. DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-65387, filed August 14, 2002.
  6. DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-65763, filed October 11, 2002.
  7. Notice of Motion No. M-66059, dated October 22, 2002, and filed November 18, 2002.
  8. Affidavit of Tamar Loper, in support of motion, sworn to October 28, 2002, with attachments.
  9. 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 (hereinafter "Demand").


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. 2002-019-512]).[1]


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. 2002-019-556]).


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.


December 16, 2002
Binghamton, New York

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




[1]Unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm.