New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2004-030-598, Claim No. 105193, Motion No. M-68792


Synopsis



Case Information

UID:
2004-030-598
Claimant(s):
BERNARD THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105193
Motion number(s):
M-68792
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
BERNARD THOMAS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
December 8, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered[1] on Claimant's motion


for sanctions brought pursuant to Civil Practice Law and Rules §3126:

1,2 Notice of Motion; Letter dated July 6, 2004 by Bernard Thomas, Claimant and attachments

  1. Affirmation by Jeane L. Strickland Smith, Assistant Attorney General
4,5 Filed Papers: Claim, Answer

After carefully reviewing the papers submitted and the applicable law the motion is disposed of as follows:

Bernard Thomas, the Claimant herein, alleges in Claim Number 105193, that defendant's agents failed to provide him with adequate and timely medical care, as well as constitutional violations stemming from such failure, while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS).

In two prior Orders issued by the Court[2] filed, respectively, August 22, 2002 and June 10, 2003, the Defendant had been directed to disclose certain documents for in camera inspection by the Court. Specifically, grievances or complaints concerning Nurse Tardio and Sergeant Cote during the years 2000 and 2001 were directed to be disclosed. No protective order relative to such documents has been sought by Defendant or granted by the Court, except to the extent that upon reargument of the initial motion granting disclosure, the Court directed that disclosure of the employees' records would be in camera. Claimant now moves to compel production of these records and/or for sanctions.

The Assistant Attorney General writes:
"Upon information and belief, the source being communications with Richard Alexis, Inmate Grievance Supervisor at Green Haven Correctional Facility, during the years 2000 and 2001 approximately 2,200 grievances were filed each year by inmates. When complaints are received they are given a log number, title, code number and are dated. The code number refers to the category that is being grieved. There are fifty (50) categories in the Inmate Grievance Program code classification system. Examples of the categories are: program committee, visitation, work assignments, housing, medical, legal mail, staff conduct. The grievances can be referenced by code number, inmate name or Department Identification Number (DIN). Grievances cannot be referenced by the name of the person(s) that are the subject of the grievance without reading each grievance . . .


Upon information and belief, the source being Richard Alexis, Inmate Grievance Supervisor at Green Haven Correctional Facility, an exhaustive search was conducted for grievances filed against Nurse Tardio and Sergeant Cote during the years 2000 and 2001. No grievances were found against these employees . . . " [¶¶ 3 and 5, Affirmation by Jeane L. Strickland Smith, Assistant Attorney General].
While an affidavit from the grievance supervisor who actually conducted the search would have been preferable, nonetheless, the Defendant's representation through the Assistant Attorney General - an officer of the Court - that there are no records of any grievances against these employees for the years 2000 and 2001, shall suffice to allow Defendant to escape the imposition of sanctions for failure to disclose. Civil Practice Law and Rules §3126.

Accordingly, Claimant's motion number M-68792 is in all respects denied.


December 8, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] The Court notes that an additional letter from Claimant addressing the Affirmation submitted by the Assistant Attorney General was received in chambers on November 3, 2004, almost one (1) month after the submission of the motion on October 6, 2004, and has not been reviewed. First, no permission to file a reply affidavit had been granted. Second, all motion papers are to be filed in the Office of the Chief Clerk of the Court of Claims. See 22 NYCRR §§206.5; 206.9.
[2] Thomas v State of New York, Claim No. 105193, Motion No. M-65479 (Waldon, J., August 22, 2002); Thomas v State of New York, Claim No. 105193, Motion No. M-65890 (Waldon, J., June 10, 2003).