New York State Court of Claims

New York State Court of Claims

DANIELS v. THE STATE OF NEW YORK, #2004-015-434, Claim No. 109346, Motion No. M-68851


Inmate claimant's motion to compel discovery denied for failure to demonstrate use of discovery devices set forth in CPLR article 31.

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:
Shaheem Daniels, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
No Appearance
Third-party defendant's attorney:

Signature date:
October 28, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion[1] to compel the production by the Department of Correctional Services (DOCS) of all medical records, photographs and statements concerning an alleged assault upon him on February 26, 2004 and to compel the production by the New York State Police of all statements taken and investigative reports prepared concerning the aforementioned assault is denied. The underlying claim seeks to recover damages for physical injuries resulting from an attack upon claimant by another inmate at Mt. McGregor Correctional Facility in Wilton, New York on February 26, 2004 in alleged retaliation for his testimony given in an administrative proceeding. Claimant alleges that the assault occurred as a result of DOCS' failure to place him in protective custody.

Despite the lack of formal opposition the motion must be denied. Claimant failed on the motion to allege what if any steps were taken to obtain the subject records and photographs by one of the means authorized in Article 31 of the CPLR prior to making the instant motion.

Rule 3120 of the CPLR which is entitled "Discovery and production of documents and things for inspection, testing, copying or photographing", in relevant part, provides:
1. After commencement of an action, any party may serve on any other party a notice or on any other person a subpoena duces tecum:

(i) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test, or photograph any designated documents or any things which are in the possession, custody or control of the party or person served;
* * *
2. The notice or subpoena duces tecum shall specify the time, which shall be not less than twenty days after service of the notice or subpoena, and the place and manner of making the inspection, copy, test or photograph, or of the entry upon the land or other property and, in the case of an inspection, copying, testing or photographing, shall set forth the items to be inspected, copied, tested or photographed by individual item or by category, and shall describe each item and category with reasonable particularity.

It is well established that "[t]he purpose of providing for the service of a notice for discovery rather than obtaining an order was to eliminate court applications" (Coffey v Orbachs, 22 AD2d 317, 319). Here it appears that the claimant chose to move for an order compelling the defendant to supply certain documents and photographs without first identifying the information and demanding that it be disclosed as part of the discovery process. Given such circumstances the Court denies the claimant's motion while noting that the defendant's failure to oppose the instant motion would appear to signal a speedy resolution of the matter once a proper demand is made.

The motion is, accordingly, denied.

October 28, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers.
  1. Undated notice of motion;
  2. Undated notice of motion;
  3. Affidavit of Shaheem Daniels sworn to July 21, 2004.

[1]Although claimant submitted two separate notices of motion and two affidavits of service the Clerk's Office assigned but a single motion number and treated the matter as a single motion. Under the circumstances the Court sees no reason to require the motions to be treated separately hence the reference to motion in the singular.