New York State Court of Claims

New York State Court of Claims
GUTTERMAN v. THE STATE OF NEW YORK, # 2019-050-049, Claim No. None, Motion No. M-94381


Case information

UID: 2019-050-049
Claimant short name: GUTTERMAN
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended sua sponte to reflect the only proper defendant, the State of New York.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-94381
Cross-motion number(s):
Claimant's attorney: Marea L. Wachsman, Esq.
Defendant's attorney: Hon. Letitia James, Attorney General
By: Robert E. Morelli, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 20, 2019
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


Movant seeks pre-action discovery pursuant to CPLR 3102 (c). Defendant opposes the motion.

CPLR 3102 (c) provides that "[b]efore an action is commenced, disclosure to aid in bringing an action . . . may be obtained, but only by court order." Movant was allegedly injured after her quad cane was taken from her by security personnel at the entrance to the Suffolk County Supreme Court lobby. The cane was allegedly taken just prior to her walking through a metal detector and movant fell prior to its return on other side of the security equipment. She now seeks to obtain the following:

1. a copy of the surveillance video of the security area on the date of her injury;

2. the name of the security personnel involved with her accident and any accident or incident reports;

3. the "names and addresses of the designer, manufacturer, installer and maintenance company of the elevated security x-ray machine and conveyor platforms";

4. an inspection of the "elevated security screening x-ray machine and conveyor platforms" including photographs, measurements and testing;

5. an order restraining the State from destroying or altering the videotape; and

6. an order restraining the State from disposing of or modifying the subject elevated security screening x-ray machine and conveyor platforms until movant has inspected, photographed and tested it.

Defendant argues - and movant concedes in her reply - that it has now satisfied or rendered moot all of movant's pre-action disclosure requests except for an order permitting an expert inspection of the raised security platform now known to be owned by Suffolk County (although the x-ray machine and conveyor are owned by defendant), or in the alternative, an order enjoining the State from "altering, modifying or removing the x-ray machines and conveyor platforms."

CPLR 3102 (c) "authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants" (Leff v Our Lady of Mercy Academy, 150 AD3d 1239 [2d Dept 2017]). It may not be used, however, to determine whether a claimant has a cause of action (id. at 1240). In the instant case, Court of Claims Act (CCA) 11 provides that a claim must state the time when and place where a claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and the total sum claimed. Movant's request for expert inspection of the security screening machine and raised platform, or an order enjoining disposing of or altering same, does not go to the requisites of CCA 11. Movant already has sufficient information to frame her claim, as is evidenced by her notice of intention to file a claim (see defendant's exhibit A).

For the foregoing reasons movant's request for pre-action disclosure is denied.

November 20, 2019

Hauppauge, New York


Judge of the Court of Claims

The following papers were read and considered by the Court on the movant's motion:

1. Notice of Motion, Affidavit in Support.

2. Affidavit filed August 27, 2019.

3. Affirmation in Opposition.

4. Reply Affirmation.