New York State Court of Claims

New York State Court of Claims

HENRIQUEZ v. THE STATE OF NEW YORK, #2003-019-533, Claim No. 104256, Motion Nos. M-66358, M-66475


Claimant's motion to compel discovery is denied. The State's motion for a protective order is granted to the extent of denying Claimant the right to serve any additional Demands for Discovery and Inspection.

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):
M-66358, M-66475
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 27, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a pro se inmate, moves to compel discovery pursuant to CPLR 3124. The State of New York (hereinafter "State") opposes the motion. The State also moves for a protective order pursuant to CPLR 3101 (a). Claimant opposes the State's motion.

The Court has considered the following papers in connection with these motions:
  1. Claim, filed May 9, 2001.
  2. Notice of Motion No. M-66358, dated January 8, 2003, and filed February 5, 2003.
  3. Affidavit of Mike Henriquez, in support of motion, sworn to January 8, 2003, with attached exhibit.
  4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated February 19, 2003, and filed February 24, 2003, with attached exhibits.
  5. Notice of Motion No. M-66475, dated February 25, 2003, and filed February 27, 2003.
  6. Affirmation of Joseph F. Romani, AAG, in support of Motion No. M-66475, dated February 25, 2003, with attached exhibits.
  7. Affidavit of Mike Henriquez, in opposition to Motion No. M-66475, sworn to March 3, 2003, and unfiled, with attached exhibit.
Briefly, this Claim alleges that medical personnel at Southport Correctional Facility committed negligence and medical malpractice in the treatment or lack thereof of Claimant's complaints of chest pains. This Claim also alleges that Claimant's request for a cholesterol test was denied, and also recites Claimant's objections to certain internal facility protocol regarding medical attention.

Claimant's Motion to Compel (Motion No. M-66358)

The Court has reviewed the Claimant's demands, the State's responses thereto, and Claimant's arguments as to why these documents are material and necessary to his claim. Upon such review, the Court finds that the State's original responses were proper and adequate in all respects. To the extent that the State identified the existence of documents in response to Claimant's demands, the State also indicated that there was a cost of photocopying those documents of 25¢ per page. (See discussion infra). Otherwise, there is nothing in Claimant's affidavit establishing that there are additional documents that are material and necessary to this Claim. Nor is there any basis for the Court to order an in camera review of any of these documents or to issue a subpoena to the State in this matter.

Claimant requests an order directing that monies be advanced on his behalf to cover the cost of photocopying. 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 State indicated that the cost of photocopying his medical records would be 25¢ per page.[1] 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 sum, Claimant's motion is denied in its entirety.

State's Motion for a Protective Order (Motion No. M-66475)

The State moves for a protective order limiting, conditioning and regulating Claimant's future use of discovery pursuant to CPLR 3103 (a) which states that "[t]he court may...make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."

According to this record Claimant has served five discovery demands to date. Four demands are entitled Demand for Discovery and Inspection and are dated or sworn to on October 24, 2002, November 4, 2002, November 18, 2002 and February 10, 2003 (hereinafter "Demand #1, 2, 3, & 4" respectively). The fifth demand is entitled "Demand for Answering Interrogatories" and was sworn to February 18, 2003 (hereinafter "Demand #5). The State has properly answered the first three demands as discussed hereinabove. The Court also finds the State's responses dated February 19, 2003 and February 25, 2003 to Demand #4 and Demand #5 to be proper.

The State argues that Claimant's multiple use of discovery demands, together with the substance thereof, serve to annoy and harass the State and amount to abuse under the statute.

For instance, Demand #3 seeks the total number of notices of intentions, inmate grievances, and medical malpractice claims against Southport Correctional Facility between the years 1996 to 2002. Moreover, Demand #3 seeks a variety of information regarding meal and food service between the years 1999 to 2002. Demand #4 sought the menu and the expiration dates for all food served between November 2002 to February 2003. In Demand #4 Claimant attempts to make a connection between his chest pains and food that was either spoiled, tampered with or contaminated, a connection not mentioned in the pleadings. Demand #5 poses 69 questions under the guise of interrogatories that can better be described as a demand for admissions combined with questions better suited for expert witnesses. In viewing these Demands the Court agrees that Claimant's use of the Demand for Discovery & Inspection has now amounted to nothing more than a method of harassing the State with information that goes beyond these pleadings. As such, the Court finds that Claimant has exhausted the use of the Demand for Discovery & Inspection having already served four such separate requests. As such, the State's motion for a protective order is granted to the extent of denying Claimant the right to serve any future Demands for Discovery & Inspection.

In view of the foregoing, it is ORDERED, that Claimant's motion to compel discovery, Motion No. M-66358, is DENIED; and the State's motion for a protective order, Motion No. M-66475, is GRANTED in accordance with the terms stated herein.

March 27, 2003
Binghamton, New York

Judge of the Court of Claims

[1]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.