New York State Court of Claims

New York State Court of Claims

CRENSHAW v. THE STATE OF NEW YORK, #2002-019-569, Claim No. 98862, Motion No. M-65614


Claimant's motion to compel discovery is denied in part and granted in part.

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:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
September 23, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a pro se inmate, moves to compel a response to his Demand for Discovery and Inspection pursuant to CPLR 3124. The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed August 26, 1998.
  2. Verified Answer, filed September 25, 1998.
  3. Notice of Motion No. M-65614, dated July 31, 2002, and filed August 8, 2002.
  4. Affidavit of William Crenshaw, in support of motion, sworn to July 31, 2002.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated August 19, 2002, and filed August 21, 2002, with attached exhibits.
Claimant alleges he was assaulted by another inmate in the mess hall area at Elmira Correctional Facility (hereinafter "Facility") on June 8, 1998. This Claim alleges the State's negligence in failing to adequately supervise inmates because a correction officer left his post.

This Claim was served on the Attorney General's office via certified mail, return receipt requested, on or about August 18, 1998 and filed with the Clerk of the Court on August 26, 1998. The State filed a Verified Answer on September 25, 1998.

By way of this motion, Claimant seeks a full and complete response to the "Request of Discovery and Disclosure/Admissions, Interrogatories" he served upon the State on June 28, 2002. Claimant did not attach his discovery demand to his motion papers. However, in its opposing papers, the State has provided the Court a copy of the Demand and the State's response, thereby permitting this Court to address the merits of Claimant's motion.

Generally, a motion to compel may be brought if a party fails to respond to "[a]ny request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123...." (CPLR 3124; emphasis added). As such, the Court will address Claimant's request for admissions separately hereinbelow. Of course, all items sought in discovery must be material and necessary in relation to the pending action. (CPLR 3101).

A. Demand for Discovery and Inspection

Claimant's Demand and the State's responses thereto state as follows:[1]

Demand #1
: Please provide the agreement that claimant signed to work in the messhall as a reception Inmate.

Answer #1
: This document is unavailable at this time. Upon information and belief, claimant should have a copy of this document in his possession.
Demand #2
: Please provide the name of the correction officer who was in charge of messhall 4 on 6/8/98 3 to 11 shift....Along with this request claimant seeks a copy of the logbook 3 to 11 shift on 6/8/98....Also claimant request a certified copy to prove that the copy's are original's taken from the log book on the date in questioned. And since these log book entry might not be legitable, claimant request some type of interpretation....

Answer #2
: This information has been provided in previous responses.
Demand #3
: According to rule 6.17 of the employee's rule manuel....Please provide in writing the signed authorization that the officer in charge of messhall 4 on 6/8/98 between 6-7 pm was given to leave his post?...

Answer #3
: It is unknown what this demand is seeking.
Demand #4
: Please provide me with what is the prescribed positioning for each officer if and outbreak should arise in the messhall....

Answer #4
: For security purposes, staffing orders, directions, requirements, etc., are not disclosed in the course of inmate litigation. The defendant objects to this demand.
Demand #5
: [W]hat radio was responded to signaling a disturbance....

Answer #5
: For security purposes, information or responses to incidents within a correctional facility are not disclosed in the course of inmate litigation. The defendant objects to this demand.
Demand #6
: Please provide me with the personnel files of each officer defendant plans to call as his witness to see if any other departmental disciplinary charges were filed against these officers....

Answer #6
: Personnel files of Department of Correctional Services (DOCS) employees are privileged and not subject to disclosure. The defendant objects to this demand.
Demand #7
: Please provide me with the officer name....

Answer #7
: This information has previously been disclosed.
Demand #8
: ...I would like verified answer's that the information is true and correct. Also I would like all this information to be interpretated....

Answer #8
: This is an improper demand. The defendant objects to it.
Demand #9
: Please provide Claimant reason for defendant's delay in not securing a trial date. Being that this case is four almost five years old.

Answer #9
: This is an improper demand. The defendant objects to it.
Demand #10
: Please provide...answer as to defendant's readiness for trial.

Answer #10
: This is an improper demand. The defendant objects to it.
Demand #11
: Please provide me with the exacted time...finish serving the dinner meal and returned to their cells?

Answer #11
: This information is already known to the claimant.

(State's Exhibits A & B).

The Court has reviewed the Demand and Response and finds as follows:

Demand #1: The State's representation that this document is "unavailable at this time" without further explanation is inadequate, as is the statement that "upon information and belief" that Claimant should already have a copy thereof. The State should produce a copy of said agreement, subject to the State's right to require Claimant to advance reasonable copying costs (Gittens v State of New York, 175 AD2d 530). Claimant's motion to compel a response to Demand #1 is granted.

Demands #2, 7, 8 & 11: The State indicates this information has previously been provided. Claimant has not submitted a reply disputing this representation. To the extent, however, that Claimant avers that the State previously supplied incorrect information, namely the wrong shift information, then the State is directed to supply the information covering the 3 to 11 shift as originally requested. The Court also notes that Claimant's request for a certified copy of the records and a translation thereof is improper and premature. In the event the documents are illegible Claimant may use available discovery methods to obtain further clarification and, when this matter is ultimately set for trial, Claimant may either subpoena these records or enter into a stipulation with counsel as to the authenticity of the records. Claimant's motion to compel responses to Demands #2, 7, 8 & 11 is denied with the exception noted.

Demand #3: The State refused disclosure on the grounds it was "unknown what this demand is seeking". The State's confusion appears disingenuous. In this Court's view, it is clear that Claimant is requesting a copy of a written authorization, if any, from the officer's supervisor that authorized that officer to leave his post at the relevant time and date. Of course, if no such written authorization exists, then the State should so state. Claimant's motion to compel a response to Demand #3 is granted.

Demands #4 & 5: The Court finds the State's objections based upon security concerns to be proper. Additionally, the Court notes that Claimant has not established that this information is material and relevant to the case at hand since:
[t]he number of corrections officers who should be present in various areas of a correctional institution...essentially involves the experience and discretion of the Department of Corrections. Indeed, deference to the judgment of correctional facility authorities must be the rule, and a court cannot properly substitute its judgment for that of such authorities.

(Papadopoulous v State of New York, Ct Cl, December 18, 2001, Minarik, J., Claim No. 103653, Motion No. M-64137 [UID No. 2001-031-004], quoting Tucker v State of New York, Ct Cl, August 28, 1996, Bell, J., Claim No. 85578). Claimant's motion to compel responses to Demands # 4 & 5 is denied.

Demand #6: Here, Claimant demanded disclosure of the personnel files of officers who may be called as witnesses at trial. The State refused. The Court agrees that this demand is palpably improper. Not only are personnel files generally privileged, but here Claimant has failed to establish in the first instance that this information is in any way material and relevant to a claim involving an inmate on inmate assault. Claimant's motion to compel a response to Demand #6 is denied.

Demands #9 & 10: Claimant's demands are improper. The Court, not the defendant, sets the trial date for prisoner pro se trials. The actual scheduling of prisoner pro se claims falls within the discretion of the Court and this matter, as with all claims, will be scheduled as soon as practicable. (22 NYCRR 206.13). Moreover, the filing of a note of issue and certificate of readiness shall not be required for prisoner pro se claims. (22 NYCRR 206.12 [a]). Claimant's motion to compel responses to Demands #9 & 10 is denied.

B. Admissions

The Court will not set out verbatim Claimant's requests for admissions due to their length, but suffice it to say that Claimant appears to have framed his requests upon quotes from various rules from a manual. For its part, the State responds to all five admissions as follows:
Answers 1 - 5
: The defendant objects to these demands for admissions as being improper and outside the scope of Article 31 of the CPLR. The employee's manual is an official publication of DOCS and its contents - apparently known to the claimant as he quotes extensively from it - speak for itself.

The State's response is proper. First and foremost, CPLR 3124 is not the proper mechanism to address alleged deficiencies in a response to a notice to admit.[2] Moreover, CPLR 3123 permits one party to require another to admit to stated facts or the genuineness of certain documents. Claimant has not asked the State to acknowledge that a certain manual is used by correctional facilities, rather he has apparently taken text from a manual and seeks to use this language to have the State admit its negligence. In sum, this Court finds Claimant's request for admissions to be improper under both CPLR 3123 (c) and 3124.

Finally, in the future, the parties are encouraged to resolve future discovery disputes, if any, without the need for further Court intervention.

Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion to compel discovery, Motion No. M-65614 is DENIED IN PART and GRANTED IN PART in accordance with the foregoing.

September 23, 2002
Binghamton, New York

Judge of the Court of Claims

[1]For purposes of brevity, the Court has presented an edited version of Claimant's Demand where possible.Additionally, due to the frequency of errors, the Court will not interject "sic" at the point of each mistake when quoting from Claimant's demands.

[2]"The notice to admit device, contained in CPLR 3123, continues to be excepted from the operation of CPLR 3124. CPLR 3123 has an independent statement of consequences for an improper response to a notice to admit, obviating reliance on CPLR 3124". (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3124:1