New York State Court of Claims

New York State Court of Claims

KINGE v. THE STATE OF NEW YORK, #2002-009-25, Claim No. 88273, Motion Nos. M-64365, CM-64434


In this motion pertaining to disclosure, the Court granted a protective order to the State and held that an internal memorandum from Special Prosecutor Nelson Roth was entitled to the attorney work product privilege. The Court also denied claimant's application for sanctions. Please also refer to prior order pertaining to same motions.

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:
BY: Russell E. Maines, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Belinda A. Wagner, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 11, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


There is presently pending before the Court claimant's motion to compel disclosure (M-64365). In this motion, claimant also seeks the imposition of sanctions against the defendant's attorney. Defendant has responded with its cross-motion (CM-64434) seeking a protective order.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation of Russell Maines, Esq., with Exhibits. 1,2

Memorandum of Law in Support of Consolidated Motion 3

Notice of Cross-Motion, Affirmation of Belinda A. Wagner, Esq., Assistant Attorney General, in Opposition to Claimant's Motion and In Support of Defendant's Cross-Motion, with Exhibits (Including the Affirmation of Peter B. Pope, Deputy Attorney General, as Exhibit 11) 4,5

Defendant's Memorandum of Law, with Exhibits 6

Affirmation (Reply) of Russell Maines, Esq. 7

Reply Memorandum of Law 8

Correspondence to the Court from Belinda A. Wagner, Esq., Assistant Attorney General, dated November 26, 2001 9

Stipulation of the Parties, "So Ordered" by the Court on May 31, 2002 10

Decision and Order dated May 30, 2002 11

Correspondence dated May 24, 2002 from Russell Maines, Esq. (withdrawing that aspect of Motion No. M-64365 relating to Demand No. 7) 12

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, § 50-a.

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 attorney.

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 department.

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)[1], 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 such items.

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 further

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.

June 11, 2002
Syracuse, New York

Judge of the Court of Claims

[1] Motion No. M-62976 was withdrawn by claimant when defendant notified claimant that it had located the "Roth" documents, and that discovery would proceed accordingly. In the within motion, claimant has renewed its request for sanctions originally requested in that motion.