New York State Court of Claims

New York State Court of Claims
CIAPRAZI v. THE STATE OF NEW YORK, # 2010-010-045, Claim No. 116977, Motion No. M-78765

Synopsis

Claimant's motion to compel defendant to take x-rays of claimant's tooth denied.

Case information

UID: 2010-010-045
Claimant(s): ROBERTO CIAPRAZI
Claimant short name: CIAPRAZI
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116977
Motion number(s): M-78765
Cross-motion number(s):
Judge: Terry Jane Ruderman
Claimant's attorney: ROBERTO CIAPRAZI
Pro Se
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 28, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-3 were read and considered by the Court on claimant's motion to compel defendant to take x-rays of claimant's tooth:

Notice of Motion, Claimant's Supporting Affidavit..................................................1

Defendant's Affirmation in Opposition and Exhibits..............................................2

Claimant's Reply Affidavit........................................................................................3

The basis of this claim is claimant's allegation that, during his incarceration, defendant severely damaged claimant's tooth during a routine dental filling procedure and then refused to provide claimant with a necessary crown on the damaged tooth. Defendant has provided claimant with the x-rays taken of claimant's tooth pre and post alleged injury. Claimant maintains that the post-injury x-rays, purportedly taken on March 25, 2010, fail to show the damage to claimant's tooth as it existed on that date; therefore claimant questions whether they were in fact taken on March 25, 2010. Further, claimant argues that, because the x-rays are of the back of his tooth, they cannot show the damage to the front of his tooth. Accordingly, claimant seeks an order compelling defendant to take new x-rays of his tooth.

Claimant's reliance upon CPLR 3121(a) is misplaced as it is not a basis for compelling defendant to take additional x-rays of claimant's tooth.(1) Indeed, "[a] party cannot be compelled to create new documents or other tangible items in order to comply with particular discovery applications" (Durham Med. Search v Physicians Intl. Search, 122 AD2d 529, at 529; Rosado v Mercedes-Benz of N. Am., 103 AD2d 395, 398). Moreover, "[t]here is no general provision which requires the State to pay the litigation expenses in claims brought against it" (Gittens v State of New York, 175 AD2d 530; Civil Rights Law 79[3], 79-a[3]).

Claimant's motion is DENIED.

September 28, 2010

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims


1. To the extent that claimant argues that he was prejudiced by not having access to the unreported decisions cited by defendant, this Court did not rely upon those citations and defendant is cautioned to refrain from using such citations without providing copies to incarcerated pro se claimants.