New York State Court of Claims

New York State Court of Claims

GREEN v. New York, #2000-019-502, Claim No. 96453, Motion No. M-60995


Synopsis


Pro Se inmate claimant moves to compel State to comply with his Demands for Bill of Particulars and Written Depositions. Motion is denied.

Case Information

UID:
2000-019-502
Claimant(s):
SHAWN GREEN, 97A0801
Claimant short name:
GREEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96453
Motion number(s):
M-60995
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
SHAWN GREEN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Resnick, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
March 2, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant, a pro se inmate, moves to compel the defendant State of New York (hereinafter "State") to comply with his Demands for a Bill of Particulars and Written Depositions.


The Court has considered the following papers in connection with this motion:

  1. Claim, filed June 19, 1997.
  2. Demand for Bill of Particulars, dated April 6, 1999.
  3. Response to Claimant's Demand for Verified Bill of Particulars, dated April 22, 1999, filed April 26, 1999.
  4. DECISION AND ORDER, Ct Cl., April 27, 1999, Patti, J., Claim No. 96453, Motion No. M-59025.
  5. DECISION AND ORDER, Ct Cl., March 17, 1999, Patti, J., Claim No. 96453, Motion No. M-58491.
  6. Notice of Motion No. M-60995, dated December 21, 1999 and filed December 27, 1999.
  7. "Affirmation in Support of Motion to Compel Discovery" of Shawn Green, sworn to December 21, 1999.
  8. "Affirmation of Good Faith Effort" of Shawn Green, sworn to December 21, 1999.
  9. Affirmation of Kathleen M. Resnick, AAG, in opposition to motion, dated January 12, 2000 and filed January 14, 2000, with attached exhibits.
  10. "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.[1] Secondly, the Hon. Philip J. Patti denied Claimant's motion to appoint a supervisor for disclosure in a Decision and Order filed April 27, 1999.[2] 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 Force Report.[3] (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 State.[4] (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] § 206.8[b]).


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.


March 2, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]Green v State of New York, Ct Cl., March 17, 1999, Patti, J., Claim No. 96453, Motion No. M-58491.
[2]Green v State of New York, Ct Cl., April 27, 1999, Patti, J., Claim No. 96453, Motion No. M-59025.
[3]These documents clearly spell out what will presumably be the State's position at trial, namely that Claimant refused to comply with a direct order and became combative necessitating physical restraint, thereby justifying the use of physical force, if any.
[4]The involvement of two of the three officers is clear from discovery to date, but neither the full name or alleged relevance of Correction Officer "J. Johnson" is clear from the record. (See "Written Deposition" dated October 8, 1999).