New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2002-019-596, Claim No. 104447, Motion No. M-66014


Synopsis


Claimant's motion to compel discovery is denied.

Case Information

UID:
2002-019-596
Claimant(s):
JOHNATHAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104447
Motion number(s):
M-66014
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOHNATHAN JOHNSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
December 9, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, a pro se inmate, moves for an order to compel discovery 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 June 20, 2001.
2. DECISION AND ORDER, Lebous, J., Claim No. 104447, Motion Nos. M-64883, CM-65276, filed June 19, 2002.
3. DECISION AND ORDER, Lebous, J., Claim Nos. 103182 et al., Motion No. M-65725, filed October 25, 2002.
4. DECISION AND ORDER, Lebous, J., Claim Nos. 104447, Motion No. M-65415, filed August 13, 2002.
5. Amended Claim, filed August 22, 2002.
6. "CLAIMANT'S DISCLOSURE REQUESTS [THIRD]", filed September 27, 2002.
7. DECISION AND ORDER, Lebous, J., Claim Nos. 103182 et al., Motion No. M-66018, filed ________, 2002.
8. Notice of Motion No. M-66014, dated November 1, 2002, filed November 6, 2002.
9. Affidavit of Johnathan Johnson, in support of motion, sworn to November 1, 2002, with attached exhibit.
10. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated November 26, 2002, and filed November 29, 2002, with attached exhibits.


The Court will attempt to recite the history of the discovery and related motion practice as it pertains to this pending motion. Claimant made an initial demand for discovery on January 16, 2002 (hereinafter "Demand #1") that included requests for information about an incident occurring on June 21, 2001. The State refused to disclose the information on the grounds that the June 21, 2001 incident was not pleaded in the Claim (hereinafter "Response #1"). After Claimant moved to compel a response, this Court agreed with the State that Demand #1 was improper to the extent information was requested regarding the unpled June 21, 2001 incident. (Johnson v State of New York, Ct Cl, June 19, 2002, Lebous, J., Claim No. 104447, Motion Nos. M-64883, CM-65276 [UID No. 2002-019-533]; hereinafter "Motion #1").[1]


Claimant then made a second discovery demand on August 6, 2002 (hereinafter "Demand #2) seeking various personnel records but said demand did not reference the June 21, 2001 incident. On August 26, 2002, the State refused to disclose the personnel records (hereinafter "Response #2) and then moved for a protective order pursuant to Civil Rights Law § 50-a and CPLR 3103. The State's motion was denied without prejudice due to an incomplete record. (Johnson v State of New York, Ct Cl, October 25, 2002, Lebous, J., Claim Nos. 103182 et al., Motion No. M-65725 [UID No. 2002-019-572]; hereinafter "Motion #2").


Claimant then made a motion to amend this Claim to add the June 21, 2001 incident. This Court granted said motion. (Johnson v State of New York, Ct Cl, August 13, 2002, Lebous, J., Claim Nos. 104447, Motion No. M-65415 [UID No. 2002-019-557]). The Amended Claim was filed with the Clerk of the Court on August 22, 2002. The State filed an Amended Answer on September 20, 2002.


One week later, on September 27, 2002, Claimant filed a discovery demand entitled "Claimant's Disclosure Requests [Third]" (hereinafter "Demand #3") seeking the same information that had been originally requested in Demand #1, namely the information pertaining to the June 21, 2001 incident. On October 2, 2001, the State sent a letter to Claimant refusing to respond to Demand #3 on the grounds that said request had previously been denied in Motion #1.


On November 6, 2002, Claimant filed this motion - now Motion #3 - to compel a response to Demand #3.


The next day, November 7, 2002, the State renewed its motion for a protective order relative to Demand #2, thus creating Motion #4. The State's renewal motion for a protective order has been granted simultaneously herewith by way of a separate Decision and Order. (Johnson v State of New York, Ct Cl, ________, 2002, Lebous, J., Claim Nos. 103182 et al., Motion No. M-66018).


The State opposes this motion and refuses to answer Demand #3 for two reasons. First, the State argues that this Court previously denied Claimant's motion to compel a response thereto in Motion #1. Second, the State argues that its latest motion for a protective order (Motion #4) includes the information sought in Demand #3 as well. The Court will deny Claimant's motion, albeit for different reasons than articulated by the State.


With respect to the State's first argument, Claimant's demands were denied in connection with Motion #1 because the June 21, 2001 incident was not pled in this Claim at that time. This Claim has now been amended to include the June 21, 2001 incident and, as such, Claimant theoretically has a right to discovery on that incident so long as the demands are proper in all other respects. Also, the Court views the State's motion for a protective order in Motion #4 as addressing different documents than those requested here. In the State's motion for a protective order it was seeking to protect numerous personnel files. The documents demanded in Claimant's Demand #3 do not appear to relate to personnel files, but rather information relating to the June 21, 2001 incident. Which leads the Court to the basis for denial of Claimant's motion. It is unclear to this Court just what documents Claimant is requesting. Demand #3 makes vague references to "package complete"; "letter - requested telephone print-out"; and "computer print-out for telephone use". (Demand #3). Due to this uncertainty this Court cannot make any determination whether such documents are material and necessary pursuant to CPLR 3101 and/or otherwise privileged. As such, Claimant's motion will be denied because he has failed to establish in the first instance that the documents requested in Demand #3 are material and necessary to the claim involving the June 21, 2001 incident and not otherwise privileged. (CPLR 3101 & 3124).


Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion to compel discovery, Motion No. M-66014 is DENIED.

December 9, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



[1]Unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm.