New York State Court of Claims

New York State Court of Claims

NEWKIRK v. THE STATE OF NEW YORK, #2003-016-080, Claim No. 106090, Motion No. M-66877


Synopsis


Inmate discovery motion was granted in part.

Case Information

UID:
2003-016-080
Claimant(s):
KEVIN NEWKIRK
Claimant short name:
NEWKIRK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106090
Motion number(s):
M-66877
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Kevin Newkirk
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 7, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is Kevin Newkirk's motion to compel responses from defendant to certain items of his August 14, 2002 "Interrogatories and Request for Identification and Production of Documents." Such discovery demand was the subject of a previous motion by Mr. Newkirk (motion no. M-66042). At that time, defendant stated that it was searching for responsive documents in the Department of Correctional Services' ("DOCS") archives and would provide them to claimant at a cost of $.25 per page to the extent they existed. Accordingly, claimant's motion was denied with leave to renew in a Decision and Order filed on February 28, 2003. In his underlying claim, Newkirk asserts that in December 2000, he discovered that the drinking water at Woodbourne Correctional Facility was contaminated with toxic substances from a fuel oil spill. A review of the papers submitted on this motion indicates that the following items from claimant's discovery demand remain at issue:


Interrogatory No. 1
: Claimant asserts that the maintenance log books produced in response to this request are illegible. The Court has reviewed the copies of the maintenance log books produced by defendant. While they are for the most part legible, there are several photocopied pages which are quite light: the page with "Thursday 28 May" printed at the top; the page with "Oct 24, 1992" handwritten at the top; the page with "October 4 Tuesday" printed at the top; and the page with "12-8 Higgins . . ." handwritten at the top. To the extent that more legible copies of such documents are available, they should be produced to claimant.


Interrogatory No. 2
: Claimant asserts that the documents produced in response to this interrogatory are "blacked out and illegible." The Court has reviewed the report produced by defendant and it does not appear to contain any "black outs," nor does it appear illegible.


Interrogatory No. 3
: In this interrogatory, claimant seeks to know "whether any ‘investigation' and/or ‘clean-up' of the spill identified in Interrogatory No. 1 was conducted by [DOCS], the Department of Environmental Conservation . . . or any other state or federal agency. If the answer is affirmative, then [produce] a copy of any and all documents related to the ‘investigation' and/or ‘clean up' . . ." Claimant asserts that the minutes of the Inmate Liaison Committee have not been produced to him. To the extent such minutes exist, they should be produced to claimant, subject to any applicable assertions of privilege.


Interrogatory No. 4
: In this interrogatory, claimant seeks to know "whether there were spills of fuel oil at [Woodbourne] during . . . .1988, 1991, and/or 1993. If the answer is affirmative, then [produce] a copy of any and all documents verifying the [occurrence] of such spills." Claimant asserts that annual water reports for the years 2000 and other years have not been produced, although this interrogatory did not refer to the year 2000 (and the 2001 water report that was produced was produced in response to interrogatory number 2). A review of defendant's response to this interrogatory shows that defendant was searching its archives to determine whether responsive documents existed and to the extent they did exist, and stated that to the extent such documents existed, they would be produced to claimant at a cost of $.25 per page. Such search should be completed and claimant should be apprised of the existence of such documents and be given the opportunity to obtain them.


Interrogatory Nos. 9 and 11 through 13
: As with interrogatory number 4, in a December 2002 response to these requests, defendant essentially stated that it was searching its archives to determine whether responsive documents existed and to the extent they did exist, they would be produced to claimant at a cost of $.25 per page. Such search should be completed and claimant should be apprised of the existence of such documents and be given the opportunity to obtain them.


Interrogatory No. 10
: In this interrogatory, claimant seeks to know the source, including name, company name and address, of any spill occurring on or about October 5, 2000. Claimant characterizes defendant's response as incomplete and inadequate, however, a review of defendant's response shows that defendant has asserted that no spill took place in October of 2000.


Accordingly, having reviewed the submissions,[1] IT IS ORDERED that motion no. M-66877 be denied in part and granted in part to the extent that within sixty (60) days of the filing of this Decision and Order:
1) to the extent that more legible copies of the maintenance log books previously produced by defendant to claimant exist, such should be produced to claimant, specifically, the page with "Thursday 28 May" printed at the top; the page with "Oct 24, 1992" handwritten at the top; the page with "October 4 Tuesday" printed at the top; and the page with "12-8 Higgins . . ." handwritten at the top;
2) to the extent that Inmate Liaison Committee minutes responsive to interrogatory number 3 exist, they should be offered to claimant for production at the cost of $.25 per page, subject to any claim of privilege; and
3) defendant shall conclude its search for documents responsive to interrogatories numbered 4, 9 and 11 through13, and to the extent such documents exist, they shall be offered to claimant for production at the cost of $.25 per page, subject to any claim of privilege.



October 7, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimant's notice of motion with affidavit in support and exhibits A-B; defendant's affirmation in opposition withe exhibit A; claimant's August 1, 2003 letter attaching copies of defendant's discovery responses; and defendant's August 19, 2003 letter attaching copies of defendant's discovery responses.