New York State Court of Claims

New York State Court of Claims

LOPER v. THE STATE OF NEW YORK, #2003-019-547, Claim No. 104861, Motion No. M-66818


Claimant's fifth discovery motion 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: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 11, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a pro se inmate, moves, for the fifth time, to compel a response to his prior discovery demand pursuant to CPLR article 31. 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. ORDER, Read, P.J., Claim No. 104861, filed September 21, 2001.
  3. DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-64390, filed February 21, 2002.
  4. DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-65387, filed August 14, 2002.
  5. DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-65763, filed October 11, 2002.
  6. DECISION AND ORDER, Lebous, J., Claim No. 104861, Motion No. M-66059, filed January 10, 2003.
  7. Notice of Motion No. M-66818, dated April 16, 2003, and filed May 15, 2003.
  8. Affidavit of Tamar Loper, in support of motion, sworn to April 16, 2003, with attached exhibits.
  9. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated May 21, 2003, and filed May 23, 2003.

This is claimant's fifth consecutive discovery motion relative to this matter. The underlying claim alleges that the State tampered with claimant's food during his 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") from which all these ensuing discovery motions flow. The history of these prior discovery motions is set forth in detail in this Court's prior Decisions & Orders. (Loper v State of New York, Ct Cl, January 30, 2002, Lebous, J., Claim No. 104861, Motion No. M-64390, [UID No. 2002-019-512]); Loper v State of New York, Ct Cl, July 29, 2002, Lebous, J., Claim No. 104861, Motion No. M-65387 [UID No. 2002-019-556]; Loper v State of New York, Ct Cl, October 1, 2002, Lebous, J., Claim No. 104861, Motion No. M-65763 [UID No. 2002-019-575]; Loper v State of New York, Ct Cl, December 16, 2002, Lebous, J., Claim No. 104861, Motion No. M-66059 [UID No. 2002-019-599]).[1] Quite simply, this Court has previously denied claimant's four prior motions in which he sought the same relief requested here. This motion is denied for the same reasons as set forth in the aforementioned prior Decisions and Orders of this Court.

With respect to the merits of claimant's request for poor person relief, an Order has previously been issued by this Court reducing the filing fee for this claimant to $25.00 pursuant to Court of Claims Act 11-a (1). (Loper v State of New York, Ct Cl, September 21, 2001, Read, P. J., Claim No. 104861). The remainder of claimant's request must be denied. Additionally, since the filing fee has already been addressed, prosecuting the matter in this Court does not require claimant to pay any further costs or fees. The fact that claimant may 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. (Gittens v State of New York, 175 AD2d 530). It is well-settled that the State has the right to require Claimant to pay reasonable photocopying costs of demanded discovery documents. (Gittens, 175 AD2d 530). 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 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, as this Court previously stated in connection with Claimant's second discovery motion he is responsible for paying reasonable photocopying costs for demanded discovery documents or for arranging reasonable alternatives with the State. Finally, contrary to claimant's statements, the Court notes that this matter has not been set for trial and will not be scheduled for trial in this calendar year.

Consequently, for the reasons stated above, it is ORDERED that Claimant's motion, Motion No. M-66818, is DENIED.

June 11, 2003
Binghamton, New York

Judge of the Court of Claims

[1]Unreported decisions from the Court of Claims are available via the Internet at