New York State Court of Claims

New York State Court of Claims

LARREA v. THE STATE OF NEW YORK, #2003-032-128, Claim No. 106495, Motion No. M-67375


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:
Leonardo Larrea, 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:
December 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In connection with this bailment claim, claimant has brought this motion seeking "Material Prepared for Litigation or Trial." A review of the information sought, however, reveals that claimant is, in fact, attempting to obtain documents that are most appropriately sought by way of a demand for discovery and inspection (CPLR 3120). It does not appear that claimant has ever served the State with such a demand, and a motion to compel discovery is appropriate only if and when a party "fails to respond to or comply with" a legitimate discovery demand (CPLR 3124). Consequently, this motion is inappropriate and premature. Counsel for defendant has properly objected to the motion on the ground that such material should be sought by way of traditional discovery devices. She is incorrect, however, in her reference to Rule 202.7(a) (22 NYCRR §202.7) as requiring that any discovery motion must be accompanied by a statement that there has been a previous good faith effort to resolve the issues raised. Rule 202.7 is found in the Uniform Rules for Supreme Court and County Court. The rule applicable to practice in the Court of Claims is Rule 206.8(b) (22 NYCRR §206.8[b]), which requires that litigants confer with the assigned judge prior to commencing any discovery motion. By its express terms, however, this provision does not apply to prisoner pro se claims, such as this one.

The Court also notes that counsel directs claimant to the Freedom of Information Law (FOIL, Public Officers Law, Article 6) as a possible avenue by which he may obtain the documents that he seeks. This is certainly a possibility, but the fact that he might be able to obtain information and documentation by way of FOIL does not preclude him from seeking material relevant to this action by means of appropriate discovery. "[T]he standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced nor restricted because he is also a litigant or potential litigant." (Matter of John P. v Whalen, 54 NY2d 89, 99 [1981] [citations omitted]). The reverse is true as well, and the standing of one who seeks to discover records under the discovery provisions of CPLR article 31 as a litigant is neither enhanced nor restricted because as a member of the public he or she may have access to those records under FOIL (Moussa v State of New York, 91 AD2d 863 [4th Dept 1982]; see also 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]).).

Claimant's motion is denied.

December 29, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order to compel certain discovery:

1. Notice of Motion and Supporting Affidavit of Leonardo Larrea, pro se

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

Filed papers: Claim; Answer