New York State Court of Claims

New York State Court of Claims

SHANNON v. THE STATE OF NEW YORK, #2003-032-131, Claim No. 104244, Motion No. M-67203


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:
Cecil Shannon, pro se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Eileen E. Bryant, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This is a medical malpractice action based on allegations that claimant has been denied needed treatment for Hepatitis C. By this motion, claimant seeks an order directing that claimant be provided with copies of "the Hepatitis (C) treatment forms that have been changed from the ones now being used by defendant," as well as copies of a biopsy report that was forwarded by Metropolitan Hospital to the Department of Correctional Services prior to a second biopsy being performed.

Claimant apparently attempted, without success, to obtain a copy of the biopsy report directly from Metropolitan Hospital by way of a Freedom of Information Law (FOIL) request (Shannon affidavit, ¶4). He makes no reference, however, to any discovery demand that has been served on the Attorney General.

The documents sought by claimant are most appropriately obtained by way of a demand for discovery and inspection (CPLR 3120). 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). Because defendant has not yet been asked to provide the documents in question, there has been no failure to respond to or comply with the demands. This motion, therefore, is inappropriate and premature.

The Court notes that it is not necessary for claimant to employ the mechanisms available in FOIL in order to obtain material to which he is entitled as a litigant.

The fact that he might be able to obtain information and documentation through FOIL does not preclude him from seeking everything 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. 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 may have access to those records under FOIL (Moussa v. State of New York, 91 AD2d 863 [4th Dept 1982]).

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 compelling the production of certain documents:

1. Notice of Motion and Supporting Affidavit of Cecil Shannon, pro se

2. Affirmation in Opposition (none received)[1]

Filed papers: Claim; Answer

[1] The Court has been informed by the Office of the Attorney General that defendant was never served with claimant's motion papers.