New York State Court of Claims

New York State Court of Claims

DUNLOP v. THE STATE OF NEW YORK, #2003-019-520, Claim No. 106718, Motion No. M-66364


Claimant's motion to compel discovery is 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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 3, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order of discovery pursuant to CPLR 3120. 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 30, 2002.
  2. Notice of Motion No. M-66364, dated January 27, 2003, and filed January 31, 2003.
  3. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated February 4, 2003, filed February 6, 2003, with attached exhibits.
Based upon this record, it appears that Claimant is under the mistaken impression that Court permission is necessary prior to making a discovery request pursuant to CPLR 3120.[1] The provision to which Claimant refers, namely CPLR 3120 (b), refers to discovery as against a non-party, but here the State is a party to this Claim and, as such, Claimant need not obtain Court permission prior to serving a discovery demand pursuant to CPLR 3120.

That having been said, however, it also appears that Claimant believes that he is entitled to photocopies of discovery documents free of charge. In responding to Claimant's informal discovery demands, the State indicated that the cost of photocopying his medical records would be .25¢ per page.[2] 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, Claimant is not entitled to free photocopies of discovery documents and to the extent Claimant's motion may be construed as an attempt to obtain the identified documents free of charge, Claimant's motion is denied.

Nevertheless, 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-66364, is DENIED.

March 3, 2003
Binghamton, New York

Judge of the Court of Claims

[1]In a letter to the State, Claimant states that "[a]gainst a non-party a Court order is required by § 3120 [b]." (State's Exhibit A).
[2]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.