New York State Court of Claims

New York State Court of Claims
DENSLOW v. THE STATE OF NEW YORK, # 2018-041-037, Claim No. 130885, Motion No. M-92069

Synopsis

Claimant's motion for an order compelling discovery is denied where claimant failed to first seek disclosure by notice or stipulation as set forth in CPLR 3102.

Case information

UID: 2018-041-037
Claimant(s): JOHNNY DENSLOW
Claimant short name: DENSLOW
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130885
Motion number(s): M-92069
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: JOHNNY DENSLOW
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
ACTING NEW YORK STATE ATTORNEY GENERAL
By: Joan Matalavage, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 21, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an inmate at Southport Correctional Facility, moves for an order pursuant to CPLR 3120 to compel defendant to produce certain information, statements, documents and materials.

Defendant opposes the motion because claimant has not served a notice for disclosure prior to moving for an order to compel disclosure.

Claimant has submitted no proof that he served on the defendant's attorney a notice for discovery and production of the requested documents and information as provided for in CPLR 3120, prior to making his motion.

Pursuant to CPLR 3102 (b):

"Unless otherwise provided by the civil practice law and rules or by the court, disclosure shall be obtained by stipulation or on notice without leave of the court."

Section 3102 further provides, at subdivision (f), that in:

"[A]n action in which the state is properly a party, whether as plaintiff, defendant or otherwise, disclosure by the state shall be available as if the state were a private person."

There is no legal requirement that an incarcerated claimant first obtain a court order in order to obtain document disclosure from the state.

Finally, CPLR 3124 states that:

"If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response."

Claimant's failure to request disclosure by stipulation or on notice prior to resorting to motion practice requires denial of the motion.

The claimant's motion is denied.

May 21, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Claimant's Motion for Discovery Demand, filed April 2, 2018;

2. Affidavit of Johnny Denslow, sworn to March 26, 2018;

3. Affidavit of Joan Matalavage, sworn to April 13, 2018.