New York State Court of Claims

New York State Court of Claims

WILLLIAMS v. THE STATE OF NEW YORK, #2004-032-044, Claim No. 108088, Motion No. M-67987


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:
Rahsaan Williams, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


By this action, claimant seeks money damages for physical injuries he suffered when he was assaulted by another inmate at Clinton Correctional Facility on September 10, 2002. The claim was filed and served in August 2003, and three months later, claimant served on defendant a demand for discovery and inspection. Counsel for defendant responded and produced the documents sought with the exception of the items requested in Demands 7 and 8:
7. A certified statement from the superintendent of Clinton Correctional Facility, Daniel Senkowski, stating how many inmates was [sic] cut or stabbed in Clinton Correctional Facility from July 2002 to September 2002 (if possible a breakdown of how many inmates was cut or stabbed in each month).
8. A certified statement from the Commissioner of Corrections, Glenn S. Goord, stating how many U.I. Reports was received in Albany from Correctional Facility Clinton – for inmates being cut or stabbed in July, 2002 to September 2002 (if possible, a breakdown of how many U.I Reports was received in Albany for each months July, 2002 – September, 2002 from Clinton Correctional Facility dealing with inmates being cut or stabbed and a copy of these U.I. Reports).
The demands were rejected by defendant, on the ground that they were "over broad, unduly burdensome, irrelevant and impalpably [sic] improper." Claimant has now moved for an order compelling defendant to produce the requested statements.

The Court cannot agree that the information sought is irrelevant, for claimant's allegation of wrongdoing on the part of the State includes an assertion that correction officials were negligent in failing to take precautions in light of a "cutting spree" that allegedly occurred between July and September 2002. The demand is improper, however, because it seeks statements from high level officials that do not currently exist. While the information claimant wants these officials to report can most likely be found in the records of Clinton Correctional Facility and the Department of Correctional Services, the discovery provisions of CPLR 3120 and 3121 pertain only to data already in existence, and no party is to create a document that does not already exist (Durham Med. Search v Physicians Intl. Search, 122 AD2d 529 [4th Dept 1986]; Frasier v Conklin, 105 AD2d 1018 [3d Dept 1984]).

If a litigant lacks knowledge of the existence or identity of specific documents that are arguably relevant to the action, the proper course of action is to make use of depositions, interrogatories, and related procedures provided by the CPLR to ascertain the nature or description of such items prior to serving a demand for discovery and inspection (Haroian v Nusbaum, 84 AD2d 532 [2d Dept 1981]; see also Rios v Donovan, 21 AD2d 409 [1st Dept 1964] and cases citing thereto), as one of the purposes of an examination before trial is to narrow the issues and identify specific documents for disclosure (Brown v Harlem Laundre-Centre, 42 AD2d 513 [1st Dept 1973]).

In addition to the two demands, discussed above, that were contained in claimant's October 2003 notice of discovery and inspection, claimant moves for an order directing defendant to produce a transcript of claimant's September 18, 2002 disciplinary hearing. This item, however, was never previously requested. A motion to compel discovery is appropriate only if and when a party "fails to respond to or comply with" a legitimate discovery demand (CPLR 3124). Consequently, this portion of claimant's motion is inappropriate and premature.

Claimant's motion is denied.

June 14, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order to compel:
1. Notice of Motion and Supporting Affidavit of Rahsaan Williams, pro se

2. Affidavit in Opposition of Michael C. Rizzo, Esq., AAG, with annexed Exhibits

Filed papers: Claim; Answer