New York State Court of Claims

New York State Court of Claims

SHEPHERD v. THE STATE OF NEW YORK, #2004-019-540, Claim No. 102856, Motion No. M-68225


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: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 5, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order compelling disclosure pursuant to CPLR 3120.[1] The State of New York (hereinafter "State") opposes the motion.

This is a bailment claim relating to claimant's missing personal property including legal documents, tobacco, photographs and a typewriter which appears to have occurred in April and May of 2000. (Amended Claim, ¶ 4). Claimant previously served a discovery demand on defendant dated June 25, 2001 demanding various documents to which the State responded in a response dated April 18, 2002. For the next two years, claimant sent numerous letters to the State requesting the information he believed was missing from the State's responses. (Claimant's Exhibits C, E & F). By way of this motion, claimant seeks the court's assistance in compelling the State to provide the alleged missing responses to his discovery demands.

First, claimant seeks an I-64 form dated February 3, 2000. (Claimant's Exhibit C). The State submits a letter from Wende Correctional Facility, as well as records from Great Meadow Correctional Facility, indicating that no such I-64 form dated 2/3/00 is contained in claimant's files.[2] (Affirmation of Carol A. Cocchiola, AAG, ¶ ¶ 5 & 6; Exhibits B & C). Additionally, the State avers that "[a]ll of the relevant I-64's that were in claimant's files were provided with the original response to discovery demands dated April 18, 2002." (Affirmation of Carol A. Cocchiola, AAG, ¶ 5). The court finds the State's responses to be proper.

Next, claimant seeks "Disbursements for purchase 12/17/99, 12/21/99, 4/24/00, 6/2/00". (Claimant's Exhibit C). The State has attached to its papers the only disbursement or refund requests located for December 1999 which are dated December 14, 1999 (two) and December 19, 1999. (State's Exhibit D). The State also submits additional inmate statements indicating that there are no entries for 4/24/00. (State's Exhibit D). The State has submitted records for commissary buys posted on 6/2/00 and 6/6/00. (State's Exhibit D). The court finds the State's responses to be proper.

Claimant also seeks "F-Block out going mail log book pertaining to out going legal mail, and personal mail from the months of March, April, and May 2000". (Claimant's Exhibit C). The State indicates that Great Meadow Correctional Facility does not keep records of legal mail, unless the items are sent by certified mail. (Affirmation of Carol A. Cocchiola, AAG, ¶ 7). The State has submitted a copy of the certified mail notebook for the months of March, April, and May 2000. (State's Exhibit C). The court finds the State's response to be proper.

Additionally, claimant seeks "commissary purchase receipts from December 1999, January, February, March, April, and May 2000." (Claimant's Exhibit C). The State advises that Great Meadow's commissary receipts from 1999 have been destroyed and are no longer available. (Affirmation of Carol A. Cocchiola, AAG, ¶ 7). The court finds the State's response to be proper.

Next, claimant requests "package room slip for Sing Sing 1996, and Elmira 1996." (Claimant's Affidavit, p 6). The State fails to address this request. Nevertheless, claimant has failed to establish how package room slips from 1996 are material and necessary to this claim nor can the court locate this request in the original demand. As such, claimant's demand for an order compelling the disclosure of 1996 package room slips is denied.

Finally, the court notes that the delay in the State's response has not resulted in any prejudice to claimant inasmuch as this matter is yet to be scheduled for trial. Moreover, the court notes that the State has provided the documents without requesting payment for the cost of photocopying even though it would have been entitled to do so. Claimant's request for costs is denied. (CCA § 27).

In view of the foregoing, it is ORDERED, that claimant's motion, Motion No. M-68225, is DENIED.

May 5, 2004
Binghamton, New York

Judge of the Court of Claims

The court had considered the following papers in connection with this motion:
  1. Claim, filed August 4, 2000.
  2. Amended Claim, filed March 12, 2001.
  3. Verified Answer filed April 18, 2001.
  4. Notice of Motion No. M-68225, dated March 2, 2004, and filed March 15, 2004.
  5. Affidavit of Eon Shepherd, in support of motion, sworn to March 2, 2004, with attached exhibits.
  6. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated April 16, 2004, and filed April 19, 2004, with attached exhibits.

[1]This matter is governed by the CPLR, rather than the Federal Rules of Civil Procedure cited by claimant.
[2]The State's responses involve several correctional facilities because claimant alleges that some of the property he lost had been purchased at Great Meadow Correctional Facility and he was then subsequently transferred to Southport Correctional Facility, then Elmira Correctional Facility, then Wende Correctional Facility, back to Elmira Correctional Facility, then to Upstate Correctional Facility, then back to Wende Correctional Facility. (Affirmation of Carol A. Cocchiola, AAG, ¶ 4).