New York State Court of Claims

New York State Court of Claims

FERRAN v. STATE OF NEW YORK, #2003-028-553, Claim No. 103026, Motion Nos. M-66426, M-66427, CM-66505


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):
M-66426, M-66427
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 1, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimants' motions pursuant to CPLR 3103(c)

(M-66426) and CPLR 3126 (M-66427) and Defendant's cross-motion pursuant to CPLR 3124:

  1. Notice of Motion and Supporting Affidavit of Mark Ferran, filed February 20, 2003 (Ferran Affidavit) (M-66426)
  1. Notice of Motion and Supporting Affidavit of Mark Ferran, filed February 20, 2003 (Ferran Affidavit) (M-66427) with annexed Exhibits A-C;
  1. Amended Notice of Motion filed February 27, 2003 (M-66426)
  1. Amended Notice of Motion filed February 27, 2003 (M-66427)
  1. Notice of Cross-motion and Affirmation in Opposition/Support of Assistant Attorney General Paul F. Cagino filed March 10, 2003, with annexed exhibit A, (Cagino Affirmation).
  1. Reply Affidavit of Mark Ferran, filed March 18, 2003 (Ferran Reply) (M-66426)
  1. Reply Affidavit of Mark Ferran, filed March 18, 2003 (Ferran Reply) (M-66427)

FILED PAPERS: Claim, filed September 1, 2000; Answer, filed September 20, 2000.

This Claim arises from the alleged unlawful arrest of Claimant Mark Ferran on June 4, 2000 by New York State Troopers following an incident that is alleged to have occurred on property owned by Claimant Nadia Ferran. Following a conference, the Court, pursuant to 22 NYCRR 206.8(b), authorized the instant motions.


Claimant seeks an order pursuant to CPLR 3103(c) "suppressing any public use or disclosure of Claimant's private matters." (see Notice of Motion, Ferran Affidavit ¶ 2). Specifically, Claimant seeks to suppress the release of information, gleaned at his deposition that he "does not presently own nor carry a ‘pistol' " (id.). The ostensible purpose for suppressing this information is that Claimant "may be able to prevent or deter a multiple-assailant (gang-type) suggesting that Claimant is carrying a concealed Pistol...." (id. at ¶25). Defendant opposes the application (Cagino Affirmation ¶¶ 18-20).

A party is free to seek a protective order to restrict disclosure based on grounds that justify the issuance of such an order (see Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383, 388 n 2). By moving pursuant to CPLR 3103(c), Claimant was required in the first instance to establish the information was "improperly or irregularly obtained" (CPLR 3103 (c), see e.g. Lipin v Bender, 84 NY2d 562 [plaintiff took confidential documents from defendant's attorney]). Inasmuch as the information was obtained in the course of Claimant's deposition, he can not satisfy the first requirement of the statute. Moreover, Claimant does not identify "the substantial right of a party" which is prejudiced in this litigation. Accordingly, the motion is denied.

Assuming arguendo Claimant had simply moved for a protective order pursuant to CPLR 3103 (a), the Court would also decline to issue such order. Quite simply, Claimant's stated reason does not justify the issuance of a protective order.


Claimant, by this motion, seeks an order pursuant to CPLR 3126 for "default judgment, absolute or conditional" based upon Defendant's failure to answer 68 interrogatories propounded on May 15, 2001. Defendant objected to the interrogatories as, inter alia, vague, unduly burdensome, irrelevant and not reasonably calculated to lead to admissible or useful evidence (see Ferran Affidavit, Exhibit B).

Whether a party intentionally, willfully or in bad faith failed to comply with discovery demands, such a determination "will be tempered by a ‘general policy favoring the resolution of actions on their merits.' Hence, before striking an answer, entering a default judgment or issuing a preclusion order, there must be a clear showing of willful or contumacious conduct" [citations omitted] (Kinge v State of New York, 302 AD2d 667, 669; Jones v General Motors Corp., 287 AD2d 757). Claimant bears the initial burden of coming forward with a clear-cut showing of willfulness (Forman v Jamesway Corp., 175 AD2d 514). The instant record does not support such a finding. Rather, Defendant, albeit in the most general of terms, has objected to the interrogatories and Claimant is dissatisfied. Moreover, Claimant acknowledges that the State Police Investigation Report, supplied in response to a Notice to Produce dated February 10, 2003 (see Cagino Affirmation ¶ 21, Ferran Reply ¶ 20), is fully responsive to 16 interrogatories and responsive in part to 21 interrogatories (Ferran Reply, ¶ 22). Notwithstanding Claimant's vitriol, the record does not disclose any conduct from which the Court could base a finding of willful or contumacious behavior. Accordingly, Claimant's motion is denied.


Defendant seeks an order compelling Claimant Nadia Ferran to provide medical release authorizations and compelling Claimants to produce photographs. Claimant opposes the cross-motion asserting that with regard to the photographs, Claimant has already agreed to produce same (Ferran Reply ¶ 11) and as to the authorizations, Defendant did not avail himself of the opportunities to obtain same when in Nadia Ferran's presence (id.). Accordingly, Defendant's motion is granted as to the authorizations and denied, without prejudice, as to the photographs.

The parties shall appear at a conference to be held in Courtroom 2, 7th Floor, Justice Building, Empire State Plaza, Albany, New York on July 10, 2003 at 1:00 p.m. Claimants shall appear at that date with the aforementioned authorizations and photographs.

By virtue of the foregoing, Claimants' motions are DENIED and Defendant's cross-motion is GRANTED in part and DENIED, without prejudice, in part.

July 1, 2003
Albany, New York

Judge of the Court of Claims