New York State Court of Claims

New York State Court of Claims

WALSH v. THE STATE OF NEW YORK, #2004-009-58, Claim No. 108194, Motion Nos. M-68110, M-68164, M-68277, M-68331


Synopsis


Claimant's several motions to compel discovery were all denied, except that defendant was directed to produce photographs, if in existence, depicting claimant's injuries.

Case Information

UID:
2004-009-58
Claimant(s):
HOWARD WALSH
Claimant short name:
WALSH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108194
Motion number(s):
M-68110, M-68164, M-68277, M-68331
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
HOWARD WALSH, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 27, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought several motions to compel discovery with regard to the above captioned claim. For purposes of judicial economy, all of these motions will be considered in this decision and order.

The following papers were reviewed by the Court in connection with these motions:
Notice of Motion to Compel Discovery and Inspection, Affidavit in Support (Motion No. M-68110).. 1,2

Defendant's Response to Claimant's Motion to Compel Discovery and Inspection (Motion No. M-68110) 3

Reply to Defendant's Response (Motion No. M-68110) 4


Notice of Motion to Complete Interrogatories, Affidavit in Support (Motion No. M-68164)

5,6

Defendant's Response to Claimant's Motion to Complete Interrogatories, with Attachments (Motion No. M-68164) 7


Notice of Motion for Discovery Pursuant to CPLR 3120, Affidavit (Motion No. M-68277)

8,9

Letter to Claimant from G. Lawrence Dillon, Esq., Assistant Attorney General, dated April 6, 2004 (Motion No. M-68277) 10


Notice of Motion for Discovery Pursuant to CPLR 3120, Affidavit (Motion No. M-68331)

11,12


"Request to Comply to CPLR 3120 Motion for Discovery and Inspection" 13

Correspondence to Claimant from G. Lawrence Dillon, Esq., Assistant Attorney General, dated April 20, 2004 14

In his filed claim, claimant seeks damages for personal injuries allegedly suffered by him during an altercation with another inmate at Mid-State Correctional Facility on November 23, 2001. Claimant suffered injuries when he struck his head on a cast iron radiator at the facility during this altercation.

Prior to these motions, each party had served discovery demands, with the State having responded to claimant's demands on or about October 21, 2003, and claimant having responded to the State's discovery demands on or about October 30, 2003.

With his responses, claimant also served a Demand for Interrogatories, to which the State did not respond. Claimant brought a prior motion in this Court (Motion No. M-67754) seeking an order compelling the defendant to answer those interrogatories. By a decision and order dated February 24, 2004, this Court denied claimant's motion and vacated those interrogatories.

Claimant has now instituted the within four motions, all pertaining to certain aspects of discovery.

MOTION NO. M-68110

In this motion, claimant seeks an order compelling defendant to produce certain documents. Specifically, claimant seeks (1) production of a letter that he wrote to the superintendent of Mid-State Correctional Facility after the incident of November 23, 2001, in which he requested criminal charges be brought against his assailant; (2) the report of an interview which was conducted of claimant regarding this request; and (3) a photograph of claimant taken on November 23, 2001, which purportedly showed his injuries.

Claimant's request to have criminal charges brought against his assailant is totally irrelevant to any inquiry which will be made by this Court in determining whether the State is liable for the injuries suffered by claimant in this incident. Accordingly, claimant's request for production of his correspondence to the superintendent, as well as the report of the interview conducted of him, are immaterial to this litigation and need not be produced.

However, any photograph of claimant's injuries allegedly suffered in this altercation is certainly relevant to the issue of damages, should the State ultimately be found liable in negligence. The Court notes that in his responses to these various motions, defendant's attorney has indicated that officials at Mid-State Correctional Facility, to date, have been unable to locate any such photograph(s). When, or if, such photograph or photographs are located, defendant is hereby ordered to provide claimant with a copy of each such photograph within 20 days of such discovery.

MOTION NO. M-68164

In this motion, claimant seeks an order compelling the defendant to respond to interrogatories directed to two employees at Mid-State Correctional Facility.

In its prior order (Motion No. M-67754), this Court had vacated interrogatories previously served by claimant. The interrogatories which are the subject of this motion are similar in nature to those interrogatories which had been vacated by this Court in that prior order, and accordingly, these interrogatories are also vacated.

In doing so, the Court notes that defendant's attorney has, in his response to this motion (see Item No. 7), provided claimant with responses to these interrogatories, providing claimant with such information to which he is entitled in his prosecution of this claim.

MOTION NO. M-68277

In this motion, claimant seeks the production of certain documents pursuant to CPLR 3120. Specifically, claimant requests (A) the Tier II hearing transcript and disposition sheet from the disciplinary hearing conducted at Mid-State Correctional Facility following the incident on November 23, 2001; and (B) a listing of the "Report of Injury" forms for any injuries sustained by inmates involving all cast iron radiators throughout the correctional facility for the past 15 years.

In response, defendant's attorney has indicated to claimant that the hearing transcript and disposition sheet, as well as other material from the Tier II hearing, are available to claimant at his request from the Inmate Records Coordinator at his facility.

With regard to the "Report of Injury" forms requested by claimant, defendant has established, to the satisfaction of this Court, that such records are not maintained by the facility in a manner which would enable records of this type to be readily produced. The Court hereby finds that such request would create an unduly burdensome requirement upon facility officials in order to locate and compile any such records, and this demand is therefore also denied.

MOTION NO. M-68331

In this motion, claimant has requested the identical documents as requested in Motion No. M-68277. Based on the foregoing considerations, this motion is also denied.

Accordingly, it is

ORDERED, that Motion Nos. M-68164, M-68277, and M-68331 are all hereby DENIED in their entirety; and it is further

ORDERED, that defendant shall produce to claimant any photograph(s) purporting to show his injuries suffered in the incident of November 23, 2001, should such photograph(s) exist, and the remaining aspects of Motion No. M-68110 are hereby DENIED.


September 27, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims