New York State Court of Claims

New York State Court of Claims

LARKINS v. THE STATE OF NEW YORK , #2004-030-555, Claim No. 106697, Motion No. M-68068


Synopsis



Case Information

UID:
2004-030-555
Claimant(s):
DAVID LARKINS
Claimant short name:
LARKINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106697
Motion number(s):
M-68068
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DAVID LARKINS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
July 27, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read and considered on Claimant's motion


for an order requiring that the Defendant further disclose documents and other pertinent items:

1,2 Notice of Motion; Affidavit in Support of Motion by David Larkins, sworn to February 17, 2004

  1. Affirmation in Opposition by Dewey Lee, Assistant Attorney General, dated May 14, 2004, with attachments
4,5 Filed papers: Claim, Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

David Larkins, the Claimant herein, alleges in Claim Number 106697 that Defendant's agents negligently or intentionally lost or destroyed his property while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS). In a Notice for Discovery and Inspection served upon the Attorney General some time ago, and filed with the Chief Clerk of the Court of Claims on January 13, 2003, Claimant sought production of various documents as well as videotapes pursuant to Civil Practice Law and Rules §3120. The documents requested - where available - were furnished to the Claimant on or about January 6, 2004, and the State waived the cost of copying same because of the late response to consent discovery. Claimant's motion to compel, Motion No. M-67355, previously decided by this Court on April 9, 2004, was denied as moot given Defendant's production of the requested items and the declaration by the Assistant Attorney General that no other documents requested existed.

The present motion essentially takes issue with what was produced in January, 2004, and also demands production of additional items not previously part of a Notice for Discovery and Inspection. As noted by the Assistant Attorney General, because no discovery demand with respect to these additional items was made to the Defendant, it is improper to then move for an Order compelling their production.

Nonetheless, the Assistant Attorney General has provided responses to the demands contained in paragraph 9, subparagraphs A through E of Claimant's Affidavit. The Assistant Attorney General indicates that items requested at subparagraphs A, C, D and E of paragraph 9 do not exist according to the Inmate Records Coordinator at Green Haven Correctional Facility (hereafter Green Haven), and has attached records - pursuant to Claimant's request for "log book entries from the Green Haven visiting desk pertaining to the officer's assignment to visit intake between January 1, 2002 and January 15, 2002" [See ¶9B, Affidavit in Support by David Larkins] - to his Affirmation.

Accordingly, Claimant's motion number M-68068 is in all respects denied.

July 27, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims