Claimant, an inmate appearing pro se, moves for an order compelling disclosure
pursuant to CPLR 3124. The State of New York (hereinafter "State") opposes the
This claim arises from an inmate on inmate assault that occurred on March 11,
2002 at Elmira Correctional Facility (hereinafter "Elmira") in which claimant
was cut in the face and neck area with a razor type weapon by another inmate at
the conclusion of a class held on the second floor of the school building the
prison uses for inmate evening programs. The claim alleges the State was
negligent in its supervision of the building. Claimant served a Notice for
Discovery and Inspection, as well as a Demand for Interrogatories, each dated
November 22, 2003 and filed with the Clerk of the Court on November 28, 2003.
The State served responses to both demands dated February 2, 2004 and filed
February 5, 2004.
By way of this motion, claimant argues that the State's responses are
inadequate and seeks to compel additional responses thereto. Additionally, many
of claimant's discovery requests include a demand for documents relating to an
unrelated assault that also occurred on the second floor of the school building
but nearly 6½ years prior on December 14, 1995. The 1995 assault involved
an attack on another inmate named Francisco Sanchez and is the subject of a
Court of Appeals decision, Sanchez v State of New York, 99 NY2d 247.
Claimant seeks many documents as of the date of his own attack on March 11,
2002, as well as the date of the Sanchez attack in 1995.
Notice for Discovery and Inspection
Claimant seeks photographs of the second floor of the school building in the
prison used for inmate evening programs where this incident occurred. (Notice
for Discovery and Inspection, ¶ 1). In the alternative, claimant demands
that the State be compelled to provide claimant with a camera and transport him
to Elmira so he may take the photographs himself. (Claimant's affidavit, ¶
9). The State responded that no such photographs exist and that it is under no
obligation to create documents/evidence that do not exist in the first instance
or to provide claimant with a camera. The State's response is proper and
claimant's motion is denied with respect to this item.
Claimant also requests photographs depicting his injury as a result of this
attack. (Notice for Discovery and Inspection, ¶ 2). The State's response
indicates that it is in possession of six Polaroid photographs of claimant's
injuries and that laser printer reproductions of these photographs can be made
and will be provided to the claimant for a total cost of $1.50 (25¢ per
copy). (State's Response dated February 2, 2004, ¶ 2). The State's
request for payment in advance for photocopying costs is proper. (Gittens v
State of New York, 175 AD2d 530). As such, claimant's motion is denied with
respect to this item.
With respect to the remaining demands, #3 through #14, the State does not
provide the court with any substantive arguments, but rather attaches a copy of
its initial discovery response and states "[t]he defense has previously replied
to these demands as can be seen in Exhibit E." (Affirmation of Joseph F.
Romani, AAG, ¶ 11).
The court has reviewed claimant's demands and the State's responses on these
remaining demands and finds that the State's responses to #3, #4, #9, #10, #11,
#12, #13, and #14 are all proper. Additionally, the court notes that to the
extent that claimant's demands seek discovery relating to the Sanchez attack of
December 14, 1995, all such demands are denied. Claimant's attack is said to
have occurred in "Room 3" in the school building. (Amended Claim, ¶ Fifth
[b]). By comparison, in Sanchez, the Court of Appeals described a
60-foot long corridor off which were six classrooms with a storage room at one
end and an officer's desk at the other end. In addition, perpendicular to the
main corridor and near the officer's desk was a shorter hallway off the main
corridor with two additional classrooms that the officer would monitor with a
wall-mounted mirror. The Sanchez attack occurred in the shorter hallway when
one officer was guarding 100 inmates and left his desk to go to the storage room
thereby preventing his ability to see the classrooms off the shorter hallway.
(Sanchez , 99 NY2d at 250). Here, the court finds that claimant has
failed to establish in the first instance that the Sanchez attack was
sufficiently similar in nature and location to his own attack and, as such, the
court cannot conclude that such information is material and relevant at this
With respect to Demands #5, #6, #7, and #8, the State refused to produce those
documents on the sole ground that it believed claimant was already in possession
thereof, but not on any other stated ground. Claimant denies possession of such
documents. As such, the State is directed to produce said items in relation to
the March 11, 2002 incident only, although not in relation to the Sanchez
incident of December 14, 1995 for the reasons stated above. Of course, the
State's production of these documents is subject to its right to request payment
in advance for photocopying costs. (Gittens, 175 AD2d 530).
Additionally, in the event an inmate is unable to afford the cost of
photocopying it is not unreasonable for the parties to attempt to arrange
reasonable alternatives, such as arranging an opportunity for claimant to
inspect such records, in advance of the day of trial, with the
understanding that any such arrangements are subject to whatever security
restrictions the State Department of Correctional Services deems appropriate.
Of course, in the event that such inspection is arranged and claimant thereafter
wishes to obtain actual photocopies of any document, he will be required to pay
reasonable copying costs as discussed herein.
Claimant's Interrogatories seek information including, among other things, the
names of the correction officers assigned to the subject location on March 11,
2002; names of correction officers who responded to the incident and who
prepared reports; physical description/layout of the subject location; changes
in physical characteristics and policies between the Sanchez assault on December
14, 1995 to the date of this incident; names of witness and correction officers
who intervened in this incident including medical treatment; and all reports of
assaults and related litigation between December 14, 1995 to date of this
The court has reviewed the Interrogatories and finds that although some of the
requests are proper, the remaining requests go well beyond the type of inquiry
for which this disclosure device was intended. It is not the obligation of the
court to prune discovery demands that are improper and in such situations, as
here, even if some of the interrogatories are proper, the entire set of
interrogatories may be stricken. (Kimmel v Paul, Weiss, Rifkind, Wharton
& Garrison, 214 AD2d 453). As such, claimant's motion to compel
relating to his Interrogatories is denied.
In view of the foregoing, it is ORDERED, that claimant's motion seeking to
compel disclosure, Motion No. M-68217, is GRANTED IN PART and DENIED IN PART in
accordance with the foregoing.
Claim, filed August 29, 2003.
Amended Claim, filed October 31, 2003.
Notice of Discovery and Inspection, dated November 22, 2003, and filed November
Interrogatories, dated November 22, 2003, and filed November 28, 2003.
Defendant's Response to Demand for Discovery and Inspection, dated February 2,
2004, and filed February 5, 2004.
Reply to Demand for Answers to Interrogatories, dated February 2, 2004, and
filed February 5, 2004.
Letter from Maximo Delacruz to Joseph F. Romani, AAG, dated February 7, 2004,
and filed February 19, 2004.
Notice of Motion No. M-68217, dated March 9, 2004, and filed March 17,
Affidavit of Maximo Delacruz, in support of motion, sworn to March 9, 2004,
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated March 29,
2004, and filed March 31, 2004, with attached exhibits.