New York State Court of Claims

New York State Court of Claims

ROSA v. THE STATE OF NEW YORK, #2003-031-019, Claim No. 104529, Motion No. M-65646


Synopsis


After an in camera inspection, Claimant's motion for an order compelling disclosure is denied

Case Information

UID:
2003-031-019
Claimant(s):
ROBERT ROSA
Claimant short name:
ROSA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104529
Motion number(s):
M-65646
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ROBERT ROSA, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 21, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This is Claimant's motion for an order compelling disclosure, pursuant to CPLR § 3124. In deciding this motion, I have read and reviewed the following papers:
1. Claimant's Notice of Motion, dated August 15, 2002;
2. Claimant's affidavit, sworn to August 7, 2002, with attached exhibits;
3. Affidavit of Richard B. Friedfertig, Esq., sworn to October 4, 2002;
4. Affidavit of Captain Martin Kearney, sworn to September 18, 2002;
5. March 27, 2003 submission of Richard B. Friedfertig, with attached exhibits;
6. Filed documents: Claim, Answer, and previous Order of this Court dated December 12, 2002. This claim arose on April 27, 2001, at approximately 10:30 p.m., while Claimant was an inmate at Wende Correctional Facility. According to Claimant, he was in his cell when another inmate was forcibly extricated from his own nearby cell. A chemical agent was allegedly used during this extrication. Claimant asserts that, shortly after the extraction, the cells surrounding the one in which the chemical agent had been used were opened and the inmates locked in those cells, including keeplock inmate Sandsom (98-A-5600), were evacuated. During this evacuation, Claimant was assaulted by inmate Sandsom. Claimant alleges that Defendant negligently failed to protect him from this assault. He seeks to recover in damages for the personal injuries he suffered as a result of this assault.

As part of the discovery process, Claimant served upon Defendant a letter demand dated March 21, 2002, requesting the production of certain documents. Claimant requested Department of Correctional Services ("DOCS") directive 4903, relating to the use of chemical agents, and DOCS directive 3006, which Claimant identified as "Policy and Procedure." Claimant also requested information on the disposition of his attacker's disciplinary hearing relating to the April 27, 2001 incident. By Order dated December 12, 2002, I directed Defendant to provide a copy of DOCS directive 4903, as it existed on April 27, 2001, to my chambers and denied the other aspects of Claimant's motion. After reviewing DOCS directive 4903 in camera, I determined that, while this document itself was not relevant, the directive called for the production of other documents, as well as a videotape in the event of the use of chemical agents in a cell extraction. Therefore, understanding that this video and documents relating to the extraction could be relevant and discoverable, in a letter dated February 21, 2003, I directed Defendant to produce these items for review in camera, as well. Defendant complied with this request, producing the identified items to the Court on March 31, 2003.

A review of the videotape, the Use of Force report, and related memoranda generated as a result of the cell extraction in question, demonstrates to the Court that they contain nothing relevant to the prosecution of Claimant's case. In fact, no inmate other than the one upon whom the chemical agent was used is mentioned in the documents or depicted in the video.

Based upon the foregoing and it is:

ORDERED, that Claimant's motion to compel disclosure is denied in its entirety.

April 21, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims