This is a motion by Claimant pursuant to CPLR 3124 for an order compelling a
response toa demand for discovery and inspection.
The claim stems from an incident in which Claimant was injured on an outdoor
basketball court at Bare Hill Correctional Facility. CPLR 3101 (a) requires
"... full disclosure of all matter material and necessary in the prosecution or
defense of an action, regardless of the burden of proof". "The words, 'material
and necessary', are ... to be interpreted liberally to require disclosure, upon
request, of any facts bearing on the controversy which will assist preparation
for trial by sharpening the issues and reducing delay and prolixity. The test
is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21
NY2d 403, 406). (Marten v Eden Park Health Servs., 250 AD2d 44) Demands
for discovery of documents and things "shall set forth the items to be
inspected, copied, tested or photographed by individual item or by category, and
shall describe each item and category with reasonable particularity." (CPLR
Though Claimant did not provide a copy of either the demand or the response
from Defendant, the items demanded are described in the affidavit by Claimant
and Defendant has provided a copy of its response. The first demand was for a
copy of each and every document related to the claim. Though Claimant may
believe such documents to be necessary to the prosecution of the claim, the
demand leaves to defendant to determine what documents may be "related to the
claim" and therefore, the demand lacks particularity.
The second demand is for incident reports and Defendant has agreed to provide
any such documents in the State's possession.
The third demand is for a list of repairs done in the recreation yard since the
date of the incident. A party is not required to create a document in response
to a demand for discovery as the demand suggests. In addition, Claimant has not
shown how each repair in the yard might be relevant to the condition alleged to
have caused the incident in which he was injured.
The sixth item is a request for a list of the names of employees on the "ground
crew" at Bare Hill Correctional Facility. Defendant has agreed to provide a
list, if one exists, of those employed in such capacity at the time of the
incident. The response is proper inasmuch as there are other avenues of
disclosure, such as depositions, through which Claimant can determine if there
is a need to identify other employees who may have done work relevant to the
issues in this claim.
The eighth demand is for the names of doctors and nurses working at Bare Hill
Correctional Facility without a proper license. Defendant correctly objected to
this demand as requiring an investigation into the licenses of each doctor and
nurse employed on the medical staff. Such information, if relevant, should be
obtained through the use of a deposition or some other disclosure device.
The ninth item is a demand for an itemized list of all inmates and staff
injured in the facility's recreation yard from 1998 to 2000. This demand is
improper for a number of reasons. First, it requires that Defendant create a
document not in existence. Second, it encompasses intentionally inflicted
injuries as well as accidental ones. Third, even if read as limited to
accidental injuries, it requires Defendant to provide information on conditions
which have not been shown to have any relevance to the condition underlying this
The tenth demand is for first and last dates of any blacktopping project done
in the recreation yard from 1998 to 2000. The item is not a proper subject for
a demand for documents and should be pursued either through a deposition or the
use of interrogatories.
Based upon the foregoing, the motion is denied.