New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2004-031-082, Claim No. 100753, Motion No. M-67992


Claimant's motion to preclude Defendant from offering evidence relating to disputed audio and videotapes, or for summary judgment is granted in part.

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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for an order to preclude Defendant from offering certain evidence or for summary judgment:
  1. Notice of Motion, filed January 29, 2004;
2) Claimant's Affidavit sworn to January 13, 2004, with attached exhibits;
  1. Claimant's Memorandum of Law, dated January 13, 2004;
4) Affidavit of Gregory P. Miller, Esq., sworn to April 22, 2004, with attached exhibit. This is Claimant's motion to preclude Defendant from offering evidence relating to certain video and audio recordings that were to have been provided to Claimant by previous order of this Court. Alternatively, Claimant requests that Defendant's answer be stricken and Claimant be granted summary judgment on the issue of liability.

The underlying claim in this matter alleges that on October, 24, 1998, while he was incarcerated at Collins Correctional Facility, Claimant was assaulted by correction officers. Claimant alleges that the incident, or at least portions of the incident, were captured by surveillance cameras. In the previous order of the Honorable Edgar C. NeMoyer, dated July 18, 2001, Defendant was directed to:
"furnish to claimant, at claimant's expense and prepayment by claimant to the defendant, copies of the video tapes of the incident of October 24, 1998, involving claimant and various correction officers, and a copy of the tape recording of the disciplinary proceeding against claimant arising from the incident of October 24, 1998 . . . "
In his current motion papers, Claimant requests relief relating to Defendant's failure to comply with Judge NeMoyer's July 18, 2001 order. According to Claimant, neither the disciplinary hearing audiotape, nor the surveillance videotapes in question have been provided to him. He does concede that he was permitted to view the videotapes, but he believes that Defendant has improperly altered the videotapes.

In opposition to this motion, Defendant asserts that the videotapes were not altered, but rather, as there were videotapes from two different cameras, these original versions were spliced together so that all surveillance footage could be presented on one videotape. With regard to the disciplinary hearing tapes, Defendant argues that "your deponent's office does not possess this tape(s) and as indicated by the Claimant in his Affidavit, the records have been expunged and while the tapes may not have been destroyed they are not to be released pursuant to the Department of Corrections" (Miller Aff., Par. 11).

With regard to the videotapes, I find no evidence that Defendant has either intentionally or negligently altered the content of the original video recordings. However, I also find that in failing to "furnish to claimant" copies of the videotapes in question, Defendant has failed to comply with the previous order of this Court. Although I find that this failure to comply was not willful or contumacious, Defendant is now directed to provide Claimant with the copies of the videotapes in question at no charge to Claimant.

With regard to the audiotape of the Claimant's disciplinary hearing, Defendant's assertions that the Department of Correctional Services has directed that they not be produced is without merit, and somewhat disturbing. The Honorable Edgar C. NeMoyer specifically directed Defendant to provide the audiotape to Claimant and it has inexcusably failed to do so. I now direct Defendant to provide Claimant with a copy of the audiotape, at no charge to Claimant.

Based upon the foregoing, it is hereby

ORDERED, that Claimant's motion is granted in part. Defendant is hereby precluded from offering any evidence or testimony relating to audio and video recordings of the October 24, 1998 incident and Claimant's subsequent disciplinary hearing, unless, within 45 days of the filed date of this decision and order, Defendant provides to Claimant copies of those video and audio recordings at no cost to Claimant. And it is further,

ORDERED, that Defendant is directed to produce, at the trial of this matter, the original, unspliced surveillance tapes so that they may be compared with the copies provided to Claimant.

June 21, 2004
Rochester, New York

Judge of the Court of Claims