New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2008-015-067, Claim No. 114479, Motion No. M-74992


Claimant'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:
Samuel Davis, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for an order compelling discovery. Claimant, a Rastafarian, alleges that on August 30, 2007 he was the victim of an assault and battery when a nurse in the medical department used a curette to search for contraband in his dreadlocks (claim, ¶ ¶ 3, 4). A request by the claimant that an x-ray be performed to avoid damage to his dreadlocks was refused. The claim alleges the forceful use of the curette constituted a violation of claimant's religious rights and caused irreparable damage to his dreadlocks (Claim, ¶ ¶ 4, 12).

On or about February 20, 2008 claimant served a Request For Production of Documents which included 34 enumerated demands, some of which contained multiple sub-parts. Defendant responded on February 29, 2008 indicating that it would provide the documents requested in the first two enumerated demands at a cost of $ .25 per page or, in the alternative, the documents would be made available for the claimant to inspect if he so chose. Defendant objected to the production of the remaining documents demanded on the grounds that the demands were overly broad and insufficiently specific.

CPLR 3101 provides for the disclosure of all items "material and necessary in the prosecution or defense of an action". While these words have been 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]).

The first two items demanded relate, respectively, to "policies, directives or instructions to medical staff concerning the use of a curette and its purpose" (defendant’s Exhibit B, demand no.1), and "policies, directives or instruction[s] to medical staff concerning the use of a medical instrument/tool in conducting a search of an inmate [sic] body or hair or body parts" (defendant’s Exhibit B, demand no. 2). The defendant agreed to comply with these demands at a cost of $ .25 per page which the claimant contends he cannot afford.

The State is not liable for expenses relating to litigation and may therefore require pre-payment of the reasonable cost of photocopying (Civil Rights Law §§ 79[3] and 79-[a][3]; Shell v State of New York, 307 AD2d 761 [2003]; Gittens v State of New York, 175 AD2d 530 [1991]; Johnson v State of New York, Ct Cl, June 30, 2006 [Claim Nos. 106601, 106179, 107011, 107138, 106508, 106878, Motion Nos. M-71826, M-71857, M-71858, M-71859, M-71861, M-71862, UID # 2006-037-013] Moriarty, J., unreported ). Accordingly, the defendant is entitled to the reasonable cost of photocopying the documents requested.

Notwithstanding defendant’s objections, the Court finds that demands numbered "9", "10", "14", and "24" request information which is material and necessary to the claim and sufficiently specific to require a response. The above-referenced demands seek:
"9. All transcribed /transcript hearing report of Nurse Lermann testifying at hearing of September 11, 2007, tape # 124407."

"10. All reports / statements filed by Nurse Lerman on August 30, 2007 or after- pertaining to his use of a medical tool on my dreadlocks / hair."

* * *

"14. All names of all inmates, medical staffs [sic], security staffs [sic] present in hospital on Aug. 30, 2007 at 6.55."

* * *

"24. Any/ all consent to Aug 30, 2007 use of medical tool with any / all authorization."
To the extent demand numbered "9" is poorly drafted, the defendant is directed to provide a copy of the hearing transcript in which Nurse Lermann testified with respect to the subject incident. Review of the remaining items of discovery demanded indicates that they are either not relevant to the prosecution of the claim or overly broad and insufficiently specific to require a response (see Taji Communications, Inc. v Bronxville Towers Apts. Corp., 48 AD3d 551[2008]; Bohlke v General Elec. Co., 27 AD3d 924 [2006]).

Based on the foregoing, the claimant’s motion is granted to the limited extent of requiring the defendant to respond to claimant’s demands numbered "1", "2", "9", "10", "14" and "24" within ten days of receipt of the reasonable cost of photocopying the documents. The defendant is directed to advise the claimant of the cost of photocopying within thirty days of the date this Decision and Order is filed.

September 5, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 7, 2008;
  2. Affidavit of Samuel Davis sworn to May 9, 2008;
  3. Brief in support of motion to compel discovery of Samuel Davis dated May 7, 2008;
  4. Affirmation of Michael W. Friedman dated June 17, 2008, with exhibits.