New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2002-005-551, Claim No. 97663, Motion No. M-65448


Claimant's motion to compel is denied.

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:
Higgins, Roberts, Beyerl & Coan, PCBy: Michael E. Basile
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 9, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On August 14, 2002, the following papers, numbered 1 to 7, were read on motion by Claimant for an Order compelling disclosure:

Papers Numbered

1, 2 Notice of Motion, Affidavit and Exhibits Annexed

3, 4 Affirmation and Affidavit in Opposition with Exhibit
  1. Reply Affidavit
6, 7 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is denied.

In this motion Claimant seeks to compel production of certain documents which have been demanded. Good faith efforts to resolve this dispute have been made, to no avail (see, 22 NYCRR 206.8[b]). Specifically, in this motion Claimant seeks documents "relative to the quantity of gang members in each cell block at Attica Correctional Facility for the time periods relevant to the incident of June 14, 1996." This claim has been the subject of prior motion practice and extensive written communication between the parties as demonstrated in the exhibits appended to the moving papers.

The questions before me may be distilled to two primary issues. First, when the demand herein was served, did the Defendant waive its right to object to release of the requested information on security grounds by not timely raising such objection within the limited period following its service? Second, regardless, does the demanded material exist and is it discoverable?

With respect to the first inquiry, I must review the demand as initially set forth in Paragraph 11 of the Claimant's combined discovery demand (Exhibit G), Defendant's response and supplemental response (Exhibits H & I), and compare the same with the requests contained within Claimant's letter dated May 3, 2002 (Exhibit L). Specifically Paragraph 11 of Exhibit G sought:
Any and all notes, records or disciplinary reports concerning alleged members of the Latin Kings and Rat-Hunters [gang members] and their behavior towards other inmates, including incidents of aggression whether involving weapons or merely threats.
The Defendant's objection to that demand asserted that the request was vague and over broad, and that no such records existed.

After a deposition on October 4, 2001, of an employee of the Defendant at the time of the incident in question, and ensuing correspondence between the parties, the specific request before me today was articulated in the letter of May 3, 2002 (Exhibit L) seeking:
records that would indicate the number of gang members in the various blocks during the relevant time[,] . . . correspondence or documents indicating that a gang members were being housed predominantly in one or more of the blocks and/or that . . . certain inmates were being transferred because gang activity was more prevalent in a certain block or blocks.
The Defendant contends that the initial demand suffered from vagueness, that no time periods, facilities, blocks, etc., were specified, whereas the current request is specific to the extent that it contains specifics, time periods, cell blocks, and the quantity of gang members therein. More telling to me however is the affidavit of Sergeant Richard Simmons, the Team Leader of the Crisis Intervention Team at Attica Correctional Facility since 1990, wherein he avers under oath that, while it is fair to assume that gangs exist, they are not authorized groups, that there is "no mechanism by way of a validation system with which ‘Gang' members can register," and that Attica does not maintain "a listing of ‘Gang Members' by cell block . . . and that no document exists that would reveal the quantity of gang members in each cell block at Attica."

That of course might leave open the possibility of a listing of gang members other than by cell block, but that is not an issue that is before me today, and, in any event, I would hope that any such inference of obfuscation is not warranted. I am cognizant of the arguments that surely there are records in the form of logs or the like which would identify those inmates who were housed in the specific cell blocks during the indicated periods. The questions remain, inter alia, whether any such inmates can be identified as putative gang members, whether the facility or DOCS maintains any listings of putative gang members, or whether such identification only exists solely within the individual inmate files of each inmate.

Pertinent to the motion before me however, I find that the nature of the inquiry involved was not refined until the letter of May 3, 2002, and thus that the Defendant did not waive any objections relative to security concerns. That being said, I am disinclined to require the Defendant to examine the individual inmate files of every inmate who was housed in the cell blocks in question during the period of time in question, to wit, late April, May and June of 1996, when the incident in question occurred, and to then tabulate putative gang involvement of those inmates.

However, the terminology proffered by the Defendant when it refers to "validation" of gang membership suggests that "validation" is the only means by which putative gang membership/involvement may be quantified. Query whether there may be other discoverable information not subject to the implied certainty and formality of "validation" of gang membership?

Nonetheless, in this motion to compel, since I find that there was no waiver of Defendant's objections related to security concerns because the inquiry was not refined until May 3, 2002, and since Sergeant Simmons avers that no documents exist satisfying the request for the quantification of gang members in the particular cell blocks during the period in question, the motion is denied.

Finally, I have relieved Claimant from the requirements as directed in the Amended Scheduling Order dated January 31, 2002, including the filing of the Note of Issue. Given the instant decision and order, a preliminary conference with the parties will be scheduled, under separate cover, to prepare a new scheduling order.

January 9, 2003
Rochester, New York

Judge of the Court of Claims