New York State Court of Claims

New York State Court of Claims

AVINCOLA v. THE STATE OF NEW YORK, #2008-015-018, Claim No. 113049, Motion No. M-74241


Inmate's motion to compel discovery was granted in part and denied in part.

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:
Luis Avincola, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves to compel disclosure pursuant to CPLR 3124. Defendant opposes the motion on the ground that the demands for which responses were not provided are objectionable. The claim alleges the defendant was negligent in the extraction of one of the claimant's teeth on December 24, 2004. Claimant served defendant with a demand for discovery consisting of demands numbered 1 through 25. In its response, defendant provided the claimant with all of his dental records and objected to demands numbered 3, 4, 5 (ii) (iii) (iv) (v) (vi) (vii), 6 through 11, 15, 17, 18, 19, 22, 23, 24 and 25. Claimant now requests an order compelling the defendant to provide responses to these demands with the exception of demand numbered 24.

CPLR 3101 provides for the disclosure of all items "material and necessary in the prosecution or defense of an action". The Court of Appeals has interpreted these words liberally to require the disclosure "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Although these discovery provisions are liberally construed, " '[u]nder our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party' " (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998], quoting O'Neill v Oakgrove Constr., 71 NY2d 521, 529 [1988], rearg denied 72 NY2d 910 [1988]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740,747 [2000]). It is therefore incumbent upon the party seeking disclosure to demonstrate that the discovery sought " 'is reasonably calculated to lead to the discovery of information bearing on the claims' " (Vyas v Campbell, 4 AD3d 417, 418 [2004], quoting Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]).

Guided by these basic principles and cognizant of the fact that while the claimant’s demands are inartfully worded they are not entirely incomprehensible, the Court directs the defendant to provide the following in response to the claimant’s discovery demands:
1) All consents to treatment signed by the claimant relative to the treatment of tooth number 15 or otherwise indicate that no such consents exist (see demands number 3, 4, 17).

2) A list of persons present during the extraction of tooth number 15 on December 24, 2004 (see demand number 7).

3) Certified copies of the records of dental treatment rendered at Coxsackie Correctional Facility on April 12, 2005 (see demand number 15).

4) Certified copies of any written contract for oral surgery in which treatment in relation to the claimant’s upper left jaw was authorized (see demand number 18).

5) Written recommendations or referrals for dental treatment and/or oral surgery at Downstate Correctional Facility relative to the extraction of tooth 15 and or the consequences thereof (see demand number 19).

6) A copy of any statement of the claimant pursuant to CPLR 3101 (e) (see demand number 22).

7) Any report(s) regarding the lighting where the alleged negligent extraction occurred (see demand number 23)[1].

The Court finds that the defendant’s objections to the remaining discovery demands were proper. CPLR 3120 (1) (i) authorizes the service of a notice “to produce and permit the party seeking discovery . . . 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. . . .” Demands numbered 5 (ii)-(vii), 6 (a) and (b), 11(i) and (ii), 23 (a) and (b) and 25 (a)-(f) are interrogatories requesting information, not specifically designated documents or things for which a notice for discovery is appropriate.
Demands numbered 8 and 9 are not only poorly drafted, they also appear to request material which is privileged (see CPLR 3101 [d] [2]).

Demand number 10 is nearly incomprehensible. To the extent the claimant seeks copies of his dental records, defendant represents that these records have been provided.

Based on the foregoing, claimant’s motion is granted in part and denied in part. The defendant is directed to serve a further response to claimant’s discovery demands as set forth herein within 30 days from the date this Decision and Order is filed and to file the response with the Clerk of the Court of Claims pursuant to 22 NYCRR § 206.5 (c).

March 5, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 12, 2007;
  2. "Affirmation" of Luis Avincola sworn to November 13, 2007 with exhibits;
  3. Affirmation of Saul Aronson dated December 27, 2007 with exhibits.

[1]. Defendant’s response to this demand indicated, in part, that it is “presently unaware of any written report of the nature and type demanded regarding lighting conditions at the time of treatment.” That the defendant is unaware of the existence of such reports is an inadequate response. A search should be made to determine whether such reports exist and a response provided accordingly.