On January 22, 2001, the following papers, numbered 1 to 6, were read on motion
by Claimant for an order compelling disclosure:
1, 2 Notice of Motion, Affirmation and Exhibits Annexed
4, 5, 6 Filed Papers: Claim, Answer, Decision and Order M-57187, CM-57406
signed December 3, 1998, filed December 23, 1998.
Upon the foregoing papers, and after hearing R. Brian Goewey, Esq., on behalf of
the Claimant and James L. Gelormini, Esq., on behalf of the Defendant, the
motion is denied.
Claimant makes this motion to compel discovery, to extend the time to complete
disclosure, and to permit the amendment of the claim. The gist of the motion
seeks additional discovery with respect to the "assaulting" inmate who injured
Claimant, specifically addressing said inmate's alleged status on keeplock at
the time of the assault.
The Defendant had rejected Claimant's discovery demands therefor on the ground
that the demands were "outside the scope of the claim" except for certain
materials which it did supply. The rejection by the Defendant relies in the
main upon earlier proceedings herein, where I decided the Defendant's motion for
summary judgment in a Decision and Order in Motion No. M-57187 and Cross-motion
No. CM-57406, filed on December 23, 1998. In that decision, inter alia,
I denied summary judgment while engaging in a lengthy analysis of Judge Bell's
decision in Donaldson v State of New York (Claim No. 93943, Decision
filed January 30, 1998). I found that neither Donaldson Scenarios "1" or
"2" were pleaded or minimally inferable from the papers before me, and limited
the claim to a "Donaldson Scenario ‘3', a circumstance where the
State was on notice, had an opportunity to intervene and then failed to do so",
providing the closest possible situation to the one alleged, and denying summary
judgment because "Claimant has raised a material question of fact as to whether
the Defendant was negligent in not more promptly responding to the attack or
stopping it after its onset . . . [narrowing] the issue . . . to the promptness
of the Defendant's response. . . ." That decision was very specific and
addressed all the submissions before me.
Claimant argues that the assaulting inmate's status on keeplock at the time of
the assault is a fact that allegedly was not known to him at the time of the
filing of the claim. He asserts, without dispute, that this information only
came to light in the affidavit of Inmate Eleby who witnessed the attack by
Inmate Derrick Brown upon Claimant. Thus he reasons that he should not be
precluded from further discovery with respect to theories evolving from the
allegation that the assailant was in keeplock, even at this time, as it could
provide evidence of a Donaldson Scenario "2".
The fatal weakness of this motion and its underlying argument is that Claimant
had the Eleby affidavit at the time of the argument of the earlier summary
judgment motion. The Eleby affidavit is discussed therein at some length, and
Claimant did not raise the possibility of a Donaldson Scenario "2" when
he had the opportunity to do so. Claimant should have raised this issue in
opposition to summary judgment, or sought an adjournment at that time to seek an
in camera inspection or other relief for the ascertainment of necessary
facts to oppose summary judgment. Claimant did not do so.
In denying summary judgment to the Defendant in the earlier motion, I did so,
allowing only the Donaldson Scenario "3" to go forward based upon a
limited material question of fact, to wit, "whether the Defendant was negligent
in not more promptly responding to the attack or stopping it after its onset"
and nothing further. This motion seeks to go beyond those parameters to obtain
disclosure for cause[s] of action sounding in Donaldson Scenarios "1" and
"2", which were already disposed of in my earlier decision and order. No appeal
was taken therefrom, and no motion to reargue or renew was made. That decision
stands, particularly in light of the fact the source of the information upon
which Claimant relies, the Eleby affidavit, was in his possession and was
previously utilized in opposing summary judgment. Claimant may not use the
proposed disclosure to investigate areas already foreclosed by prior court
order. The motion is denied.
An Amended Scheduling Order will be issued to the parties under separate