|Claimant short name:||JOSEPH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Ricardo Joseph, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Roberto Barbosa, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||June 14, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed this claim against the State of New York on March 12, 2009, alleging that on April 17, 2008, he was assaulted by correction officers at Southport Correctional Facility. Claimant now moves this Court for an order compelling defendant to comply with certain discovery demands. Defendant opposes the motion. For the reasons set forth below, the Court denies claimant's motion to compel.
By Notice for Discovery and Inspection, dated April 8, 2009, claimant requested that defendant produce documents responsive to 11 enumerated demands. In response, defendant stated that it would provide copies of the documents to which it did not object upon receipt of payment from claimant at a cost of $0.50 per page (see Defendant's Reply to Claimant's Request for Production of Documents, dated April 23, 2009, a copy of which is annexed to defendant's Affirmation in Opposition as Exhibit A). Thereafter, by Amended Notice for Discovery and Inspection, sworn to May 15, 2009, claimant reiterated the same requests set forth in his initial Notice for Discovery and Inspection, along with two other demands, specifically demands #12 and #13. Defendant responded to the 12th demand (see Defendant's Reply to Claimant's Request for Production of Documents, dated June 11, 2009, and annexed to defendant's Affirmation in Opposition as Exhibit C), and in its Affirmation in Opposition to the pending motion, offered to produce the documents requested in the 13th demand, so long as they exist, at a cost of $0.25 per page. By letter dated September 21, 2009, claimant requested that defendant encumber his inmate account for the total cost of the requested documents (see Defendant's Affirmation in Opposition, Exhibit E). By letter dated September 23, 2009, defendant advised claimant that it could not encumber his account in order to have the requested documents produced. Thereafter, claimant filed this motion seeking to compel defendant's production of the requested documents, in the interest of justice. In opposition to claimant's motion, defendant clarifies its previous position and states that any medical documents which are to be provided to claimant shall be provided at a cost of $0.50 per page and that all other documents shall be provided at a cost of $0.25 per page (Barbosa Affirmation, ¶ 10).
There is no general provision which requires the State to pay the litigation expenses in claims brought against it, particularly where, as here, poor person status has not been granted (Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]). As such, the State has the right to require claimant to pay reasonable photocopying costs of demanded discovery documents. The fact that claimant may avow to be impoverished because he is incarcerated entitles him to no greater rights than a non-prisoner pro se litigant who does not have the funds to carry out all the normal steps of litigation, including discovery (see Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]). As defendant is not liable for the costs of photocopying documents that are sought pursuant to a discovery request (see Shell v State of New York, 307 AD2d 761, 762 [4th Dept 2003], lv denied 1 NY3d 505 ; Civil Rights Law §§ 79  and 79-a ), the Court finds that defendant's responses to claimant's discovery demands, as clarified by its Affirmation in Opposition, to be reasonable. Specifically, claimant shall be required to pay for photocopies of the requested documents at a cost of $0.50 per page for medical documents and $0.25 per page for all other documents, prior to defendant's remittance of the same.
Based upon the foregoing, claimant's motion to compel the requested documents is denied. To the extent claimant seeks to have his inmate account encumbered by the cost for the aforesaid photocopies, his request is also denied, as the relief requested is beyond the limited circumstances set forth by the Department of Correctional Services for allowing such charges against an inmate account (see Directive 2788 ["Collection & Repayment of Inmate Advances & Obligations"], see also Babilonia v State of New York, Claim No. 109830, M-71760 [Ct Cl October 26, 2006, Hudson, J.]).
June 14, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion to Compel Discovery and Inspection Pursuant to CPLR 3124, and Affidavit in Support of Ricardo Joseph, dated February 26, 2010, with Exhibits.
2. Affirmation of Roberto Barbosa, AAG, in Opposition to Claimant's Motion to Compel Discovery and Inspection, dated March 25, 2010, with Exhibits.
Papers filed: Claim, filed March 12, 2009; Order of Hon. Richard E. Sise, Presiding Judge, filed March 27, 2009; Verified Answer, filed April 6, 2009; Decision and Order of Hon. Judith A. Hard, J.C.C., filed September 11, 2009.