New York State Court of Claims

New York State Court of Claims

POPE v. THE STATE OF NEW YORK, #2003-013-008, Claim No. 106277, Motion Nos. M-65872, CM-65927


Claimant's motion for an order compelling disclosure in a claim alleging assault by correctional officers is granted only with respect to certain items of unquestioned relevancy and is otherwise denied.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On November 20, 2002, the following papers were read on Claimant's motion for an order to compel and on Defendant's motion for a protective order:
1. Notice of Motion and "Motion of Discovery and Inspection" of Joseph Pope, pro se

2. Notice of Cross-Motion and Supporting Affirmation of James L. Gelormini, Esq.

3. Affidavit in Opposition to the Cross-Motion of Joseph Pope, pro se

4. Filed Papers: Claim; Answer

This is a claim for personal injuries that, it is alleged, resulted when Claimant was assaulted by correction officers at Orleans Correctional Facility on March 6, 2002.
Claimant alleges that following the assault, he was taken to the facility medical service where he was examined and numerous photographs were taken. The substantive portion of Claimant's motion papers now before me consist of a seven-page document captioned "Motion of Discovery and Inspection." This document contains 16 separate demands for production, some of which have several subdivisions. Prior to this motion, Defendant was served with another document captioned "Motion of Discovery and Inspection,"[1] and defense counsel responded by sending a letter to Claimant in which he rejected some of the demands as irrelevant, because they related to Claimant's criminal conviction, and others as overbroad and burdensome (Gelormini Affirmation, Exhibit 1). Counsel suggested that Claimant "limit your requests to relevant information pertaining to this particular claim by submitting a CPLR notice." Instead, Claimant responded by bringing the instant motion.

The motion is improper in form in that the Notice of Motion is not accompanied by a supporting affidavit (CPLR 2214). Rather than reject it for that reason and simply prolong the process, however, I will entertain the motion despite this defect.

Counsel for Defendant is correct when he characterizes most of the demands made by Claimant as improper, overly broad, and in many respects irrelevant to the instant claim. The demands served in connection with this motion are similar to those served in another claim, Maybanks v State of New York (Claim No. 105834, Motion No. M-65372, Cross-Motion No. CM-65450, July 30, 2002, NeMoyer, J.) (Gelormini Affirmation, Exhibit 3). In fact, they are strikingly similar, even down to the wording, numbering and apparently identical handwriting. In response to cross-motions relating to those demands, Judge NeMoyer denied the claimant's motion in its entirety and granted Defendant's motion for a protective order on the ground that the "disclosure demands are either irrelevant and/or overly broad."

I believe I would be entirely justified in making a similar ruling. While the pleadings and other submissions of a pro se claimant should not be held to the precise standard one would expect of an attorney, they must be intelligible (see, Hodge v State of New York, 213 AD2d 766, 768 [rejecting a purported notice of intention described as "a confusing discourse of conclusory allegations with cross-references to voluminous documents"]).

On the other hand, Claimant is entitled to conduct some disclosure in order to prosecute his action and he has attempted, however inartfully, to do so. Further, I anticipate that outright denial of this motion will be likely to result in service of a different, but equally unsatisfactory, demand for discovery and inspection and then further motion practice. Consequently, considering the nature of the action, the allegations in the claim, and the relevant nature of some, but certainly not all, of Claimant's discovery demands, I will grant his motion to a certain extent and direct Defendant to produce, for Claimant's inspection, the following documents:
1. Any Unusual Incident Report and any other investigative report that was produced as a result of any event at Orleans Correctional Facility that resulted in personal injury to Claimant on March 6, 2002.

2. Claimant's medical records for March 6, 2002 and seven days thereafter.

3. Any photographs of Claimant taken by prison officials on March 6, 2002 or during the following seven days.

4. Any Misbehavior Report issued to Claimant on March 6, 2002 or at some subsequent time but relating to events that occurred on that date.

Claimant's motion is granted only insofar as Defendant is directed to produce the documents and other items listed above. Defendant's motion for an order of protection is granted except with respect to its obligation to produce those enumerated items.

March 20, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]While it is not clear that the demands accompanying Claimant's motion papers are identical to those previously served on Defendant, they are apparently very similar.