New York State Court of Claims

New York State Court of Claims

DIAZ v. STATE OF NEW YORK, #2001-018-061, Claim No. 100697, Motion No. M-62395


Court denied Claimant's motion to compel Defendant to disclose "Attorney General investigative reports" pursuant to CPLR 3101(d)(2).

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:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 7, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel brings this motion seeking an order compelling the State of New

York to disclose "Attorney General investigative reports" pursuant to CPLR 3101(d)(2). The

Court has considered the following documents in determining this motion:

Notice of Motion..........................................................................1

Affirmation of Chester W. Jaskolka, Esquire, in

support with all exhibits attached thereto.........................2

Affirmation of Assistant Attorney General,

Joel L. Marmelstein, Esquire in opposition......................3

Reply Affirmation of Chester W. Jaskolka, Esquire

with all exhibits attached thereto......................................4

Filed Documents:

Verified Claim...............................................................................5

Verified Bill of Particulars.............................................................6 Claimant served a Discovery Demand dated November 22, 1999 upon the defendant. With respect to Claimant's first cause of action, the demand seeks the production of:
"All Attorney General investigative reports regarding this matter as provided for by CPLR §3101(d)2. Given the nature of the Department of Correctional Services internal security requirements, Attorney General investigators will have enjoyed a decided advantage not available to Claimant in obtaining case materials. Claimant simply will not have similar access and as such will suffer severe undue hardship and disadvantage in pursuing this matter." (Diaz Discovery Demand, III-Discovery of Documents and Things, A(6), page 5)

Claimant sets forth the identical demand with respect to his second cause of action. (Diaz Discovery Demand, III-Discovery of Documents and Things, B(5), page 5-6). Defendant refused to provide the reports demanded. Claimant maintains that because the Attorney General's Office has superior access to information from the Department of Correctional Services, he will be at a decided disadvantage in preparing for and prosecuting this case unless he has access to the Attorney General's reports. Defendant, in opposition, alleges that the documents Claimant seeks are not relevant, and that they are sought solely to obtain insight into Defendant's analysis of the case and the defense to be presented. According to Defendant, Claimant simply has no substantial need for the reports. In response, Claimant reminds the Court of the correction officers "gray wall of solidarity," representing the barricades and impenetrable nature of the organization, "specifically designed and secretly constructed to frustrate even the most skillful of challengers." (Jaskolka Reply Affirmation page 4)

Under the general rule governing disclosure, CPLR 3101 (a)(1-4), all evidence material and necessary for the prosecution or defense of an action is discoverable. Despite this broad direction, the legislature exempted certain matters from discovery either completely or conditionally. There is absolute immunity from disclosure pursuant to CPLR 3101(b) for communications between attorneys and their clients. CPLR 3101(c), which has been narrowly construed, provides absolute immunity for an attorney's work product. (Brunswick Corp. v Aetna Casualty and Surety Co., 49 Misc 2d 1018, modified 27 AD2d 182; Siegel, NY Prac. §347, at 532 [3d ed]) CPLR 3101(d)(2), on the other hand, provides conditional immunity and states in relevant part that:
"materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means."
If the items sought fall under CPLR 3101(b) or (c) they are simply not subject to disclosure, regardless of how desperately Claimant feels he may need them. For absolute immunity, Defendant bears the burden of proof. (Marten v Eden Park Health Services, Inc., 250 AD2d 44) If the items sought fall into the category of material prepared for litigation they are subject to conditional immunity. Once it has been established that the documents sought were prepared for litigation, the burden shifts to the party seeking disclosure to show substantial need and undue hardship. (Lamitie v Emerson Elec. Co-White Rodgers Div. 208 AD2d 1081) In this case, Claimant does not dispute that the materials were prepared for litigation, but Claimant maintains that whatever the Attorney General has obtained during the course of its investigation is not obtainable by other means, and Claimant will therefore suffer undue hardship as a result. The assertion is unsubstantiated. Not only has Claimant failed to identify what exactly he feels the Attorney General may have uncovered during its investigation which would not be obtainable through a deposition or other discovery devices, he has also not submitted how he will suffer undue hardship. If the Court were to accept Claimant's contention, merely because a claim arises from an incident within the confines of a prison, involving prison officials, the Attorney General's office would be subject to having the investigation documents it prepares in defense disclosed to opposing counsel in every case.

Claimant has two causes of action, one for medical malpractice for failure to properly treat an injury to claimant's leg, and a second cause of action for assault and battery of Claimant by certain correction officers. For both causes of action Claimant has listed several witnesses. For the medical malpractice cause of action there are surely medical records and documents, and for the assault and battery cause of action, Claimant asserts that there may be surveillance videos. Based upon what is before it at this time, the Court cannot accept that whatever the Attorney General uncovered during its investigation cannot be ascertained through other discovery devices such as depositions and a notice to produce.

Accordingly, Claimant's motion is DENIED.

February 7, 2001
Syracuse, New York

Judge of the Court of Claims