Claim, filed June 19, 1997.
Demand for Bill of Particulars, dated April 6, 1999.
Response to Claimant's Demand for Verified Bill of Particulars, dated April 22,
1999, filed April 26, 1999.
DECISION AND ORDER, Ct Cl., April 27, 1999, Patti, J., Claim No. 96453, Motion
DECISION AND ORDER, Ct Cl., March 17, 1999, Patti, J., Claim No. 96453, Motion
Notice of Motion No. M-60995, dated December 21, 1999 and filed December 27,
"Affirmation in Support of Motion to Compel Discovery" of Shawn Green, sworn to
December 21, 1999.
"Affirmation of Good Faith Effort" of Shawn Green, sworn to December 21,
Affirmation of Kathleen M. Resnick, AAG, in opposition to motion, dated January
12, 2000 and filed January 14, 2000, with attached exhibits.
"REPLY" of Shawn Green, in support of motion, dated January 21, 2000 and filed
January 26, 2000.
Claimant alleges State correction officers assaulted him while he was
incarcerated at the Shawangunk Correctional Facility on May 20, 1997. There
were two prior motions relative to this Claim. Initially, the Hon. Philip J.
Patti denied Claimant's motion to strike the State's affirmative defenses in a
Decision and Order filed March 17, 1999.
Secondly, the Hon. Philip J. Patti denied Claimant's motion to appoint a
supervisor for disclosure in a Decision and Order filed April 27,
By way of this current motion, Claimant
alleges the State has failed to adequately respond to two of his discovery
requests, namely a Demand for Bill of Particulars dated April 6, 1999 and
requests for "written depositions" from three State correction officers.
1. Demand for Bill of Particulars
Claimant served a Demand for a Bill of Particulars dated April 6, 1999 upon the
attorney general requesting the following information:
1. State claimant culpable conduct and want of care as referred to in
first affirmative defense.
2. State third person or persons whose negligence or fault or want of
care the defendant, the State of New York, is not responsible as referred
to in second affirmative defense.
(Demand for a Bill of Particulars dated April 6, 1999). The State's response
stated as follows:
1. That the claimant was engaging in assaultive, combative and
threatening behavior, and further was acting in violation of Department
of Corrections Rules and Regulations on failing and/or refusing to
follow the directions and orders of the correction officer. The State
reserves the right to supplement this response.
2. The State reserves the right to respond pending further discovery.
(State's Response to Claimant's Demand for a Verified Bill of Particulars dated
April 22, 1999).
Claimant asserts this response is "vague, overbroad and irrelevant".
(Affirmation in Support, ¶ 3). The Court disagrees. Generally, a bill of
particulars is an amplification of a pleading designed to prevent surprise at
trial, but is not the procedure to obtain evidence, but rather "[t]he bill is
supposed to offer a more expansive statement of the pleader's contentions rather
than the evidentiary basis on which they rest." (Siegel, NY Prac § 238, at
382 [3rd ed]). The State's response met its obligation to expand upon the
reference to Claimant's own "culpable conduct" contained in its Answer. The
evidentiary material which led to this position has been disclosed by the State
in response to other discovery demands including, among other things, written
statements from the correction officers, Employee Accident Reports, Report of
Inmate Injury, Inmate Misbehavior Report, Unusual Incident Report, and Use of
(State's Response to Claimant's
Demand for Discovery dated March 18, 1998, Exhibit B). Moreover, Judge Patti
previously found the State's first and second affirmative defenses (to which
this Demand for Bill of Particulars is directed) to be legally sufficient.
(Green v State of New York
, Ct Cl., March 17, 1999, Patti, J., Claim No.
96453, Motion No. M-58491). Accordingly, the portion of Claimant's motion
seeking to compel a response or a supplemental response to Claimant's Demand for
a Bill of Particulars is denied.
2. Written Depositions
Claimant also appears to be lodging an objection to the State's refusal to
stipulate to Claimant's use of "written questions" pursuant to CPLR 3108.
However, Claimant later concedes he can not compel the State to permit the use
of this discovery device which requires a stipulation between the parties.
(Exhibit H to Affirmation of Kathleen M. Resnick, AAG [letter to the attorney
general dated December 30, 1999]). As such, Claimant's motion relative to the
written depositions is denied as moot.
Parenthetically, the Court notes that Claimant responded to the State's refusal
to stipulate under CPLR 3108 with a request that the State issue subpoenas so
Claimant could depose these three correction officers by audio-tape recording.
(Exhibits H & J to Affirmation of Kathleen M. Resnick, AAG). While Claimant
may depose correction officers relevant to the case, the issuance of subpoenas
is not required since these individuals are apparently still employees of the
(CPLR 3106 [b]). In order to schedule
depositions, Claimant should follow the procedure set forth in CPLR article 31,
including the notice procedure. (CPLR 3107). The parties are reminded of their
obligation to engage in good faith efforts to resolve any disputes that should
occur relative to the taking of these depositions prior to seeking this Court's
intervention. (Uniform Rules for the Court of Claims [22 NYCRR] §
Finally, the parties are advised that this matter has been scheduled for trial
solely on the issue of liability on July 11, 2000 at the Sullivan Correctional
Facility located in Fallsburg, New York.
The parties will receive further correspondence from the Court with respect to
the trial schedule and preparations.
Accordingly, for the reasons stated above, it is ordered that the Claimant's
motion to compel, Motion No. M-60995 is DENIED.