New York State Court of Claims

New York State Court of Claims

DeTORRES v. THE STATE OF NEW YORK, #2003-032-079, Claim No. 104663, Motion No. M-66757


In order to bring a motion to compel, claimant must first serve a discovery demand on defendant and defendant must ignore or inadequately answer the demand. A motion to compel brought before these events occur is premature and must be 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:
Ettore DeTorres, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Resnick, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for property loss brought by a prison inmate who is appearing pro se. By this motion, he seeks to compel defendant to turn over a number of documents, statements, and other evidence which, he states, are relevant and material to his cause of action (DeTorres affidavit, ¶5). Claimant does not include in his motion papers a copy of any demand for discovery and inspection that was previously served on the State. In fact, counsel for defendant asserts that the State was never served with such a demand (Resnick affirmation, ¶9), and claimant has not refuted this statement.

A motion to compel may be brought by a litigant when the opposing party fails to respond to "[a]ny request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123" (CPLR 3124). Where there has been no initial request or demand, there can be no failure to respond, and thus a motion to compel does not lie. "Claimant may not seek relief under CPLR 3124 unless and until he has served discovery demands in accordance with the CPLR and the Uniform Rules of the Court of Claims and such demands are improperly rejected or inadequately answered by the State" (Williams v State of New York, #2002-019-565, Claim No. 106218, Motion Nos. M-65548, M-65549, Sept. 6, 2002, Lebous, J.).

The Court notes, however, that contrary to an implication that could be drawn from one of counsel's statements, it is not necessary for a litigant to attempt to obtain needed documentation by way of FOIL (Freedom of Information Law, Public Officers Law, art 6). It is well-settled that "[t]he mere fact that disclosure was available to the applicant through some other discovery device, such as under CPLR article 31 in a plenary action or under CPL article 240 in a criminal proceeding, does not ipso facto preclude FOIL relief, if warranted" (Matter of Farbman & Sons v New York City Health & Hosps Corp, 62 NY2d 75 [1984]; City of Newark v Law Dept of the City of New York, __ AD2d __, 760 NYS2d 431, 435 [1st Dept 2003]). The converse is true as well: the possibility that information may be available through a FOIL request does not preclude a party from seeking the same information through traditional CPLR discovery. In fact, the certain types of information that are privileged under FOIL may be discoverable under the CPLR (Matter of Estate of Schwartz, 130 Misc 2d 786 [Sur Ct, Nassau Co 1986]).

Claimant's motion is denied as premature.

August 12, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order to compel discovery:
1. Notice of Motion and Supporting Affidavit of Ettore DeTorres, pro se

2. Affirmation in Opposition of Kathleen M. Resnick, Esq., AAG

Filed papers: Claim; Answer