Correspondence dated May 28, 2002 from Belinda A. Wagner, Esq., Assistant
Attorney General withdrawing Cross-Motion No. CM-64434 13
In addition to its consideration of the above papers, the Court has also
conducted numerous conferences with counsel for both parties in attempts to
resolve the ongoing disputes over disclosure, and counsel for both parties have
also entered into extensive discussions pertaining to this issue. As a result
of these efforts, counsel for the parties have now entered into a stipulation
(Item No. 10), approved by the Court, which provides that disclosure of certain
records of the New York State Police, as well as records of Special Prosecutor
Nelson E. Roth, shall be made to claimant under certain conditions. This
stipulation, previously filed with the Court, incorporates a specific list of
the information or documents to be released.
Additionally, this Court, in a prior Decision and Order dated May 30, 2002
(Item No. 11), has ordered the release of additional information and records,
designated as an "internal investigation", pursuant to Civil Rights Law, §
The Court has now been notified by letter from claimant's attorney dated May
24, 2002 (Item No. 12), that claimant has withdrawn that aspect of her discovery
motions relating to Demand No. 7 contained in claimant's demands for
discovery and inspection dated May 2, 2001, and the supplemental demand dated
May 30, 2001.
Furthermore, based upon the stipulation entered into by the parties, defendant
has now withdrawn its cross-motion (CM-64434) (Item No. 13).
Based on the above, as well as a review of the motion papers before the Court,
it appears that the only issues that remain to be addressed herein involve a
determination as to whether claimant is entitled to disclosure of additional
records and documents not addressed in either the stipulation (Item No. 10) or
the prior order of this Court (Item No. 11), and a resolution of the issue as to
whether this Court should impose sanctions upon the defendant and/or its
With regard to the disclosure issue, it appears to the Court that claimant has
now been provided with all information, records, and documents requested by her,
except for Item No. 18 on "Schedule A" of the aforesaid stipulation.
Item No. 18 apparently consists of a memo from Special Prosecutor Roth to Chief
Inspector Francis DeFrancesco of the New York State Police, dated May 30, 1996.
Defendant contends that this memorandum was prepared by Special Prosecutor Roth
during his investigation of allegations of corruption within the ranks of the
State Police, and as such, it qualifies as attorney work product and is
therefore immune from disclosure under CPLR § 3101(c). Claimant
contends, however, that the memorandum from Special Prosecutor Roth to Chief
Inspector DeFrancesco contains admissions of Prosecutor Roth relating to
possible negligent conduct on the part of a Senior Investigator within the
It is well settled that the immunity provided by CPLR § 3101(c) to
attorney's work product applies to such items as correspondence, briefs,
statements, and memoranda, and that the memorandum in question (Item No. 18)
clearly falls within this category of material protected from disclosure. The
Court therefore finds that defendant is not obligated to disclose this
memorandum to claimant.
With regard to the issue of sanctions, claimant had originally sought sanctions
in a prior motion (M-62976)
, and she has
renewed her request for such sanctions in the within motion. Claimant
originally sought sanctions based upon defendant's failure to account for the
"Roth" documents, or to conduct any meaningful search for them, and has
continued its request for sanctions based upon defendant's refusal to provide
any such disclosure, even after the "Roth" documents were located.
Pursuant to § 206.20 of the Uniform Rules for the Court of Claims, as Part
130 of the Rules of the Chief Administrator of the Courts is made applicable to
the Court of Claims, this Court therefore has the authority to impose sanctions.
Pursuant to Part 130, costs and sanctions may be awarded by the Court for
"frivolous conduct", as defined therein.
In this claim, there is no question that claimant has encountered a
considerable delay in her efforts to obtain discovery. In the initial stages of
discovery, the delay was certainly attributable to the fact that the State was
unable to locate the "Roth" material. Upon finally locating these records,
substantial time was then spent by the parties in examining these records, which
resulted in the current dispute over whether defendant had the duty to disclose
As it turns out, claimant has now received, either through the aforesaid
stipulation or by the prior order of this Court, all items, documents and
records to which she is legally entitled.
Furthermore, and most importantly, the Court finds that once the "Roth"
documents were located, there was no willful failure on the part of the
defendant to disclose, nor was there any frivolous conduct by the defendant
intended primarily to delay or prolong this litigation. The Court finds that
any delays in the production of documents or records to the claimant resulted
from an honest, good-faith dispute over discoverability.
Accordingly, based upon all of the circumstances herein, the Court finds no
basis on which to impose sanctions against the defendant.
Therefore, it is
ORDERED, that the aspect of claimant's Motion No. M-64365, seeking disclosure
of Item No. 18 of its discovery demands, is hereby denied; and it is
ORDERED, that the aspect of claimant's Motion No. M-64365, seeking the
imposition of sanctions against the defendant and/or defendant's attorney, is
hereby denied; and it is further
ORDERED, that Cross-Motion CM-64434 is hereby denied as moot, having been
withdrawn by the defendant.