New York State Court of Claims

New York State Court of Claims

DELACRUZ v. THE STATE OF NEW YORK, #2004-019-535, Claim No. 108209, Motion No. M-68217


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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 motion.

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 juncture.

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 incident.

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.

April 14, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed August 29, 2003.
  2. Amended Claim, filed October 31, 2003.
  3. Notice of Discovery and Inspection, dated November 22, 2003, and filed November 28, 2003.
  4. Interrogatories, dated November 22, 2003, and filed November 28, 2003.
  5. Defendant's Response to Demand for Discovery and Inspection, dated February 2, 2004, and filed February 5, 2004.
  6. Reply to Demand for Answers to Interrogatories, dated February 2, 2004, and filed February 5, 2004.
  7. Letter from Maximo Delacruz to Joseph F. Romani, AAG, dated February 7, 2004, and filed February 19, 2004.
  8. Notice of Motion No. M-68217, dated March 9, 2004, and filed March 17, 2004.
  9. Affidavit of Maximo Delacruz, in support of motion, sworn to March 9, 2004, with attachments.
  10. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated March 29, 2004, and filed March 31, 2004, with attached exhibits.