New York State Court of Claims

New York State Court of Claims

BERNARD v. THE STATE OF NEW YORK, #2003-015-337, Claim No. 102988, Motion No. M-66413


Court directed defendant to make DOCS directives available to claimant's counsel in this bitterly contested action involving injury to inmate sustained during logging operation at Shock facility. Court directed Attorney General to disclose names and statements of inmates involved in logging operation on date of claimant's injury or provide affidavit explaining why such information cannot be provided.

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:
Larry Dorman, P.C.By: Larry Dorman, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion to compel the disclosure of materials previously demanded in claimant's notice for discovery and inspection dated November 20, 2002 is granted to the extent provided herein. The claim filed on August 28, 2000 asserts that the claimant was injured as a result of the negligence of the State while working at a wooded area/campground known as Twin Valley on January 5, 2000. Claimant, an inmate at the Moriah Shock Incarceration Correctional Facility (the facility) in Mineville, New York, was part of a work crew clearing trees and brush at the Twin Valley site. The claim alleges that logs and debris were normally cleared using either a log carrier or a sled but that on the date of claimant's accident the work crew was instructed by supervising officers to roll the logs down an embankment. Claimant was struck by a log and sustained injuries to his ankle and leg.

Claimant first seeks information to identify the inmates who were members of the crew clearing brush at Twin Valley on January 5, 2000 as well as any statements taken from the inmates following the incident involving the claimant. While the defendant admits that there is evidence tending to show that statements were taken from inmates on the date of the accident defense counsel asserts that although a thorough search of the facility has been conducted the statements have not been able to be located. In this regard defendant has submitted the affidavit of Sergeant Peter Besson, a crew sergeant at the Moriah facility, who states that he was unable to locate statements of inmates who were part of the logging crew on the day of claimant's injury despite a search therefor. Finally, in this regard, defense counsel states in his affirmation in opposition to the motion "[t]he list (roster) of inmates on particular work crews was turned in daily for the purpose of the 'count'. When the daily count is concluded, the records on which it is based are routinely destroyed."

Defendant's response to the requested relief is clearly inadequate. The identity of the inmates who participated in the work crew of which the claimant was a member on the date of his injury is clearly material and necessary for the preparation of claimant's case (Hunter v Tryzbinski, 278 AD2d 844; Parsons v Borden, Inc., 273 AD2d 749). So too are any statements taken from inmates following the accident in the absence of any claim of privilege (Shuford v State of New York, 79 AD2d 773; CPLR 3101 (d) (2); Salzer v Farm Family Life Ins. Co., 280 AD2d 844). The affidavit of Sergeant Besson is of little weight in that he is not a person charged with the duty of maintaining the records of the facility (Fugazy v Time, Inc., 24 AD2d 443). Similarly, defense counsel's assertion that rosters of inmate work crews were destroyed on a daily basis is not made upon personal knowledge and no affidavit from an individual familiar with the keeping of such records or policies regarding their destruction was submitted on the motion (Castillo v Henry Schein, Inc., 259 AD2d 651; Citibank (S.D.) v Johnson, 206 AD2d 942; Vierya v Briggs & Stratton Corp., 166 AD2d 645).

While it is true that a party may not be required to disclose that which it does not possess (Carp v Marcus, 116 AD2d 854), the defendant has failed to demonstrate that information concerning the identification of inmates assigned to claimant's work crew on January 5, 2000 and any statements taken from the inmates following claimant's injury does not exist. These issues could have been resolved long ago had the defendant submitted an affidavit of the records access officer, custodian or other person with personal knowledge of the record keeping procedures at Moriah Shock Incarceration Correctional Facility that a diligent search had been conducted and (i) records were discovered and will be disclosed or (ii) despite his or her best efforts the records were unable to be located.

In the exercise of the discretion granted the Court in resolving such disputes (McMahon v Aviette Agency, 301 AD2d 820; Kozuch v Certified Ambulance Group, 301 AD2d 840) the Court directs the following: the defendant shall within 30 days of service of this decision and order provide claimant's counsel with the names and current addresses of inmates who were members of the work crew of which claimant was a part on January 5, 2000 and any statements taken from such inmates. To the extent such records are unavailable and not able to be disclosed, the defendant shall serve upon claimant's counsel the affidavit of a person responsible for the keeping and maintaining of records at the Moriah Shock Incarceration Correctional Facility that he or she has conducted a diligent search for the records requested and the records do not exist or could not be located.

Claimant further seeks materials originally requested in a notice for discovery and inspection dated November 20, 2002. Specifically, claimant seeks a response to demand number one contained therein which requests "SHOCK training materials provided to inmates, including written documents and videotape". Claimant further seeks materials related to demand number 2 requesting "SHOCK training materials provided to employees of Moriah, including CO's, including written documents and videotape". Defense counsel asserts with regard to the first demand that it has previously provided an outline of the training provided inmates regarding woods safety and logging and that further disclosure regarding shock incarceration material related to inmates is neither relevant nor material. Claimant's counsel has not contested in his reply affirmation that he has previously received information pertaining to inmate woods safety and logging procedures and the Court finds that further disclosure regarding inmate shock incarceration requirements and procedures has not been demonstrated to be relevant, material or necessary to the preparation of the case. Claimant's motion is therefore denied to the extent that it requests such materials.

As to demand number two regarding employee shock training materials, the defendant has provided as part of its submissions on the motion what is described as an employee manual as well as a copy of the Shock Incarceration Procedural Manual. The Court finds that these materials are responsive to the request and therefore denies that part of the motion seeking their disclosure as moot.

Claimant next seeks the disclosure of materials requested by demand number three of the November 20, 2002 notice for discovery and inspection regarding "[a]ll 'Directives' applicable to Officers Welch, Lobdell, Denton, Reid, Bezon and Lohrman, with regard to logging procedures and safety". In support of that part of the motion which seeks disclosure of the directives claimant has included a portion of the examination before trial of Officer Denton in which he relates the existence of directives governing correction officer conduct and procedures. In response to the motion defense counsel states that upon request claimant's counsel will be provided the opportunity to view directives in Albany at a mutually convenient time. As a result, the Court directs that the parties shall confer and reach a mutually agreeable time at which the claimant's counsel may review departmental directives in Albany, New York. Claimant's counsel is directed to contact the Assistant Attorney General, in writing, within 10 days following receipt of a copy of the decision and order herein, for the purpose of recommending dates and times for viewing the documents and making any photocopies which may be required. It is further directed that the claimant's counsel shall be provided the opportunity to review the directives in Albany at a date no later than 60 days following service upon the parties of this decision.

Demand number eleven of claimant's notice for discovery and inspection requested "[a]ll 'bids' submitted by Officers Welch, Lobdell, Denton, Reid, Bezon and Lohrman for logging jobs at the Twin Valley Facility". Included within the submissions appended to his affirmation in opposition defense counsel has included a blank job bid slip from the Moriah facility. The Court has reviewed the job bid slip submitted by the defendant which merely notes the particular officer's job preference, shift and squad, the date and the officer's seniority. Claimant has failed to demonstrate the materiality or necessity of the original job bid slips and the request for disclosure of such material is accordingly denied.

Claimant further seeks medical records of 14 inmates who claimant alleges were involved in injury producing incidents similar to that involving the claimant. Specifically, claimant seeks production of "redacted medical records containing pertinent and relevant information into the manner in which the fourteen similar incidents occurred". In response defense counsel indicates that inmate injury reports for each of the 14 inmates have been previously supplied to claimant's counsel. Attached to his affirmation in opposition are copies of the reports of inmate injury, each of which provides a brief description of the manner in which the particular inmate was injured and the nature of the injury. The Court finds that the defendant has adequately addressed the claimant's demand in this regard and that the claimant has failed to establish that additional disclosure would produce materials which are either material or necessary. The Court notes in this regard that although disclosure of medical records was discussed at a previous conference involving the Court, the claimant's November 20, 2002 notice for discovery and inspection does not demand production of the medical records requested herein. The Court finds that the reports of inmate injury previously provided to claimant's counsel and submitted on the motion provide information concerning both the manner in which the inmate injury occurred and the nature of the injury suffered. Further disclosure must be supported by information establishing the relevancy and materiality of the medical records requested. No such showing has been made herein.

Finally, claimant seeks disclosure of worksite safety evaluation sheets. Claimant's counsel states that he has previously been provided a blank copy of a worksite evaluation sheet which requires or provides that a worksite shall be inspected on a daily basis, safety guidelines shall be reviewed with inmate work crews and that work crews are to be monitored for proper safety practices and to prevent accidents. In his affirmation in opposition to the motion defense counsel states that he presumes claimant's counsel is requesting forms contained in the work crew site safety program which did not commence until October, 2000 and was, therefore, not in effect on the date of claimant's injury (January 5, 2000). Claimant's counsel has not contested defendant's assertion regarding the effective date of the work crew site safety program and the worksite safety evaluations required therein and claimant's request for the disclosure of the evaluations is therefore denied.

June 30, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court has considered the following papers:
  1. Notice of motion dated February 10, 2003;
  2. Affirmation of Larry Dorman dated February 10, 2003 with exhibits;
  3. Affirmation of Kevan J. Acton dated April 7, 2003;
  4. Reply Affirmation of Larry Dorman dated April 14, 2003 with exhibits;
  5. Affidavit of Peter Besson sworn to April 22, 2003.