New York State Court of Claims

New York State Court of Claims
WEEMS v. THE STATE OF NEW YORK, # 2010-015-119, Claim No. 115306, Motion No. M-77488


Claimant's motion to compel discovery was denied where motion was not supported by a copy of the discovery demand and defendant opposed the motion on the ground it was not served.

Case information

UID: 2010-015-119
Claimant(s): KEVIN WEEMS
Claimant short name: WEEMS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115306
Motion number(s): M-77488
Cross-motion number(s):
Claimant's attorney: Kevin Weems, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 10, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves to compel discovery pursuant to CPLR 3124. Defendant opposes the motion on the ground that it was not served with a demand for discovery and inspection.

Claimant's previous motions for the production of discovery (Motion No. M-77169) and to compel the depositions of certain witnesses (Motion No. M-77168) were denied by Decision and Order of this Court dated January 15, 2010 ( Weems v State of New York, Ct Cl, January 15, 2010 [Claim No. 115306, Motion Nos. M-77168; M-77169], Collins, J. unreported). In denying the motion requesting the production of discovery, the Court noted that the claimant failed to support the motion with a copy of the discovery demand to which a response was sought, stating "[a] necessary prerequisite to a motion to compel discovery is the service of a demand" (see CPLR 3124). Claimant makes the same mistake on the instant motion, which was served before the Decision and Order on the prior motion was issued. Claimant should first serve a demand for discovery of those items which are material and necessary in the prosecution of the action (CPLR 3101 [a]; 3120) and then move to compel a response if necessary.

Accordingly, claimant's motion is denied.

March 10, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Undated notice of motion filed November 19, 2009;
  2. Affidavit of Kevin Weems sworn to November 4, 2009;
  3. Affirmation of Kent B. Sprotbery dated November 25, 2009.