New York State Court of Claims

New York State Court of Claims

ANTON v. THE STATE OF NEW YORK, #2000-001-025, Claim No. 92390, Motion No. M-61196


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Manton, Sweeney, Gallo, Reich and Bolz, LLP.By: Rosemarie A. Klie, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 27, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimants' motion for an order striking defendant's answer, precluding defendant from offering any evidence at trial, imposing sanctions for failure to comply with prior discovery demands, and compelling defendant to produce the requested material: Notice of Motion, dated January 31 and filed February 7, 2000; Affirmation in Support of Rosemarie A. Klie, Esq., dated January 31 and filed February 7, 2000, with annexed Exhibits A-G; and Affirmation in Opposition of Grace A. Brannigan, Esq., AAG, dated March 3 and filed March 7, 2000, with annexed Exhibits A-E. Claimants Mace Anton and Anna Anton ("claimants") were granted permission pursuant to Court of Claims Act § 10 (6) to file this claim alleging that Mace Anton was assaulted on November 2, 1993 by an individual named Martin Mullins, who had been conditionally released from a facility operated by the Division for Youth ("DFY") (now known as the Office of Children and Family Services)[*] without permission for aftercare and supervision in violation of Executive Law § 510-a (see, Anton v State of New York, Ct Cl, unreported decision filed July 20, 1995, Mega, P.J., Motion No. M-50781).

This is the fifth motion in which claimants have asked the Court to strike the answer of defendant State of New York ("defendant" or "the State") and to preclude defendant from presenting evidence at trial due to perceived failures to fulfill its discovery obligations. Claimants also ask the Court to sanction the State pursuant to CPLR 3126. Defendant opposes the motion with the simple statement that it has fully complied with all discovery orders (Affirmation of Grace A. Brannigan, Esq., AAG, dated March 3 and filed March 7, 2000 ["Brannigan Aff."], ¶¶ 7, 8).

The Court's most recent order directed defendant to produce any responsive documents from the four categories of outstanding discovery described in the order (Anton v State of New York, unreported decision filed June 28, 1999, Read, P.J., Motion No. M-59165, Cross-Motion No. CM-59330); specifically,
(1) Division for Youth Foster Care documents for Martin Mullins;

(2) Documents regarding the certification of Trina Lloyd as a Division for Youth foster parent;

(3) Documents regarding release of Martin Mullins from Division for Youth residential facility to reside in community with Division for Youth foster parent, Trina Lloyd; and

(4) Documents regarding the selection of Trina Lloyd as foster parent for Martin Mullins.

The Court directed defendant to provide claimants with any responsive documents from these categories within thirty (30) days after the date the order was filed, or by July 28, 1999. The State's response was sent on September 20, 1999 by new defense counsel, to whom the case had been reassigned after the Court's order (Brannigan Aff., ¶ 6).

According to claimants' counsel, many of the documents provided were illegible and/or incomplete (Affirmation of Rosemarie A. Klie, Esq., dated January 31 and filed February 7, 2000 ["Klie Aff."], ¶ 7). A review of the submissions (Klie Aff., Exhibit B) reveals little, if any, problems with legibility, but the submissions on their face appear incomplete; specifically,
Application of Trina Lloyd: apparently, only the reverse page of a form application was disclosed;

(2) Foster Family Interview: apparently, only pages 1 and 2 of 8 pages were disclosed and a referenced "Narrative" may also exist;

(3) Psychological assessment: page 2 of the 7-page report appears missing; and

Unusual Incident Report: one page only, although it appears there is a continuation.

In short, several of the documents appear incomplete; no explanation has been offered that (1) each of these the documents is, in fact, as complete as the originals in DFY's files from which they were copied; and/or (2) any of the documents have been redacted and, if so, on what basis.

Defense counsel states that she has provided all documentation that was sent to her by DFY's counsel (Brannigan Aff., ¶¶ 4, 5, 6), and the Court has no reason to doubt her on this score. Defense counsel has also provided correspondence to show that her predecessor promptly alerted DFY's counsel about the Court's discovery order filed June 28, 1999, and that DFY's counsel timely responded (id., Exhibits B, C and D). Still, defense counsel has yet to explain why, without explanation, she forwarded to opposing counsel discovery responses that appear incomplete on their face. Furthermore, these apparent deficiencies in the State's production were brought to its attention in an October 26, 1999 letter from claimants' counsel (Klie Aff., Exhibit C). Defense counsel has not informed the Court that she replied to that letter in writing or orally, and submitted opposition papers without making any reference to the letter or (again) providing any explanation or correcting any inadequacy of the discovery response.

CPLR 3126 authorizes a court to penalize a party who refuses to obey an order directing disclosure or "wilfully fails to disclose information which the court finds ought to have been disclosed." Among the penalties that the court may impose are an order resolving in favor of the moving party issues to which the information is relevant; an order precluding the disobedient party from producing evidence or the things or items of testimony being sought; an order striking the disobedient party's pleadings, in whole or in part; an order staying further proceedings until the demanded information is provided, or an order dismissing the action. This list is not exhaustive, and monetary sanctions may also be awarded to sanction frivolous conduct (Klein v Seenauth, 180 Misc 2d 213). Any sanction imposed is to be fashioned as narrowly as possible under the circumstances of each individual case (DiDomenico v C & S Aeromatick Supplies, 252 AD2d 41).

Upon review of the papers provided on the motion, the Court finds nothing to date in defendant's conduct to justify imposing the drastic remedies sought by claimant (see, Shorter v Luxury Auto Rentals, 234 AD2d 158, and cases cited therein), or sanctions. The Court therefore denies claimants' motion insofar as claimants seek an order striking defendant's answer, precluding defendant from offering evidence at trial and imposing sanctions, and otherwise directs as follows:
(1) Defendant shall provide claimants (a) complete copies of the documents identified by claimants' counsel in her October 26, 1999 letter (Klie Aff., Exhibit C), as well as the Condition of Release Agreement, or an explanation as to why any of the pages apparently missing from the documents enclosed with defendant's September 20, 1999 letter were not, in fact, missing or are unavailable; and (b) an affidavit or affirmation from counsel at DFY to verify that DFY personnel with knowledge have been asked to search and have represented that they have searched all files in which documents in the categories and of the kind described in this Court's order filed June 28, 1999 would be kept in the regular course of business, if they exist, and that the documents enclosed with defendant's September 20, 1999 letter, as supplemented by any production in conformity with this order, constitute complete copies of all such documents.

(2) Defendant is directed to serve the supplemental response and the affidavit or affirmation, both as provided for in paragraph (1), on claimants' counsel by either personal service or courier within thirty days of the date that this decision is filed. Following service on claimants, and within five days after this service, defendant shall file with the Court another copy of the supplemental response and the affidavit or affirmation, along with an affidavit of service confirming that the documents have been served on claimants.

(3) The deadline for completion of discovery in this matter is September 1, 2000. The Court encourages the parties to resolve any further discovery disputes on their own. In the event good faith efforts prove unavailing, the aggrieved party is directed to notify Principal Court Attorney William E. Dertinger ([212] 775-0100 [ext. 41]), who will schedule a conference to resolve the discovery dispute. The Court will not entertain any discovery motion until after such a conference has been held.

(4) The deadline for filing a note of issue and certificate of readiness is November 1, 2000.

June 27, 2000
Albany, New York

Judge of the Court of Claims

Chapter 436 of the Laws of 1997 transferred the functions, powers and duties of the Division for Youth to the Office of Children and Family Services, an autonomous office within the Department of Family Services, the successor agency to the Department of Social Services.