New York State Court of Claims

New York State Court of Claims

WYNN v. THE STATE OF NEW YORK, #2003-019-513, Claim No. 106689, Motion Nos. M-66237, CM-66312


Claimant's motion to compel discovery is denied; State's cross-motion to dismiss motion is denied as moot.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 14, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion to compel discovery is denied; State's cross-motion to dismiss motion is denied as moot.

The Court has considered the following papers in connection with these motions:
  1. Claim, filed September 25, 2002.
  2. Demand for Discovery, undated, and filed November 7, 2002.
  3. Defendant's Response to Demand for Discovery, dated December 16, 2002, and filed December 18, 2002.
  4. "Motion Seeking Courts [sic] Intervention Due to Defendants [sic] Failure to Comply With Discovery Demands", Motion No. M-66237, undated, and filed December 23, 2002.
  5. Notice of Cross-Motion No. CM-66312, dated January 21, 2003, and filed January 23, 2003.
  6. Affirmation of Joseph F. Romani, AAG, in support of cross-motion, dated January 21, 2003, with attached exhibits.
This Claim alleges that the State was negligent in failing to protect Claimant from an assault by various correction officers at Southport Correctional Facility (hereinafter "Southport") on August 29, 2002.

The subject of this motion is Claimant's undated "Demand for Discovery" filed with the Clerk of the Court on November 7, 2002. Claimant alleges that the State's responses thereto, dated December 16, 2002 and filed with the Clerk of the Court on December 18, 2002, are inadequate. Although not attached to Claimant's moving papers, the Court's file does contain a copy of Claimant's Demand for Discovery and the State's Response to Demand for Discovery.

The State objects to the motion arguing that it never received service of the motion papers and that the papers are "unsworn, unaffirmed, and otherwise unverified". (Affirmation of Joseph F. Romani, AAG, ¶ 9). Nevertheless, the Court will address Claimant's motion, since the State has opposed the motion on the merits by arguing that "[i]t is believed these responses are adequate. As stated, if the claimant desires copies of the items enumerated in the response, payment must first be received by the defendant." (Affirmation of Joseph F. Romani, AAG, ¶ 11).

In the State's Response to Claimant's Demand for Discovery, the State acknowledged the existence of medical records (86 pages); a Use of Force Report (14 pages); photographs (quantity not stated); and a hearing tape (yet to be transcribed), but indicated the cost of photocopying would be .25¢ per page.[1] (State's Response to Demand for Discovery, ¶ ¶ 1 [a], [e], [f], [g], [h] & [i]). The focus of Claimant's motion is his attempt to obtain all of these items, presumably free of charge. Quite simply, it is well-settled that the State has the right to require Claimant to pay reasonable photocopying costs of demanded discovery documents. (Gittens v State of New York, 175 AD2d 530). The fact that Claimant may avow 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. (Id.). More specifically, in Gittens, the Third Department stated as follows:
[t]here is no general provision which requires the State to pay the litigation expenses in claims brought against it. Court of Claims Act § 27 specifically provides that, except in instances not here present, "costs, witnesses' fees and disbursements shall not be taxed * * * by the court to any party". Moreover, claimant is an inmate in a State correctional facility subject to a sentence of imprisonment. Civil Rights Law § 79 (3) and § 79-a(3) specifically provide that the State shall not be liable for any expense of, or related to, inmate litigation and shall not be required to perform any services related thereto, particularly where, as here, poor person status has not been granted (see, Mapp v State of New York, 69 AD2d 911, 912).

(Gittens, 175 AD2d at 530-531).

In short, since the sole basis of Claimant's motion is his attempt to obtain the identified documents and items free of charge, Claimant's motion must be denied.

That having been said, in the event an inmate is unable to afford the cost of photocopying it is not unreasonable for the parties to attempt to arrange reasonable alternatives, such as arranging an opportunity for Claimant to inspect such records with the understanding that any such arrangements are subject to whatever security restrictions the New York State Department of Correctional Services deems appropriate. Of course, in the event that such inspection is arranged and Claimant thereafter wishes to obtain actual photocopies of any document, he will be required to pay reasonable copying costs as discussed herein.

In view of the foregoing, it is ORDERED, that Claimant's motion, Motion No. M-66237, is DENIED, and the State's cross-motion, CM-66312, is DENIED as moot.

February 14, 2003
Binghamton, New York

Judge of the Court of Claims

[1]The State did not indicate a cost of reproduction for the photographs or hearing transcript. The State may provide Claimant that information by way of letter. Additionally, the Court notes that .25¢ per page is a proper charge for photocopies of a department record not exceeding 9 inches by 14 inches in size and that the fees for other types of copies shall be "reasonable amounts." (7 NYCRR 5.36). Public Health Law §17 provides that a reasonable charge for paper copies shall not exceed seventy-five cents per page.