New York State Court of Claims

New York State Court of Claims

VIRGIL v. THE STATE OF NEW YORK, #2004-019-541, Claim No. 105531, Motion No. M-68297


Synopsis


Case Information

UID:
2004-019-541
Claimant(s):
MELVIN VIRGIL
Claimant short name:
VIRGIL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105531
Motion number(s):
M-68297
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MELVIN VIRGIL, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 10, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for an order "declaring defendants responses legally insufficient" which the court will deem as a motion compelling disclosure pursuant to CPLR 3124. (Notice of Motion). The State of New York (hereinafter "State") opposes the motion.

This claim arises from an incident in which claimant slipped and fell on wet stairs while incarcerated at Southport Correctional Facility (hereinafter "Southport") on February 26, 2001. Claimant served a discovery demand on defendant on December 8, 2003 and the State filed a response thereto with the Clerk of the Court on February 5, 2004.[1] (State's Exhibits A and C).

By way of this motion, claimant argues that two of the State's responses are inadequate.


Claimant's first demand was for "any and all Memorandums, Investigative Files, concerning Claim No. 105531." (State's Exhibit A). The State's response indicated that "[u]pon information and belief, there is no inmate injury report on file at Southport Correctional Facility in regard to this alleged incident." (State's Exhibit C, ¶ 1). In opposition to this motion, the State further clarifies that this response was provided after inquiry of the officials at Southport. (Affirmation of Joseph F. Romani, AAG, ¶ 5). In short, the State represents that no inmate injury reports exist in relation to this matter. As such, the court finds the State's response to be proper and adequate.


Claimant also complains about the State's response to his fifth numbered demand which requested "any and all documentation concerning injuries to claimant due to the (C.O.S) failure to protect claimant." (State's Exhibit A). The State's response stated "[b]ecause no injuries were caused to claimant 'due to the (CO's) failure to protect claimant', there are no such records or other documentation." (State's Exhibit C, ¶ 5). The State's opposing papers herein deny the existence of other documents based upon claimant's phraseology that intertwines his discovery demands with the issues of liability, causation, and injury. (Affirmation of Joseph F. Romani, AAG, ¶ 6). Although it is clear that claimant's initial demand is not artfully drawn, the court will let the demand stand in view of claimant's pro se status. That having been said, however, the court finds the State's response to be adequate in light of the ambiguity of claimant's demand. In sum, the court will deny claimant's motion, although claimant may well choose to make a supplemental discovery demand which is framed in a more concise manner.


In view of the foregoing, it is ORDERED, that claimant's motion, Motion No. M-68297, is DENIED.


May 10, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The court has considered the following papers in connection with this motion:
  1. Claim, filed January 28, 2002.
  2. Notice of Motion No. M-68297, dated April 2, 2004, and filed April 7, 2004.
  3. Affidavit of Melvin Virgil, in support of motion, sworn to April 2, 2004.
  4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated April 21, 2004, and filed April 23, 2004, with attached exhibits.


[1]Claimant's discovery demand was actually entitled as a "Notice of Motion of Disclosure Pursuant to CPLR 3120", but both the court and defense counsel properly treated said document as a discovery demand rather than a motion. (State's Exhibit B).