THOMPSON v. THE STATE OF NEW YORK, #2005-010-058, Claim No. 108000, Motion Nos.
Discovery motion, claimant not entitled to information, re: ongoing
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
CRAVATH, SWAINE & MOORE, LLPBy: Lawrence E. Buterman, Esq.
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Gail Pierce-Siponen, Assistant Attorney General
December 23, 2005
See also (multicaptioned
The following papers numbered 1-3 were read and considered by the Court on
claimant's motion to compel and defendant's cross-motion for summary judgment
dismissing a number of claimant's causes of action:
Notice of Motion, Attorney's Supporting Affidavit and Exhibits, Memorandum of
Notice of Cross-Motion, Attorney's Supporting Affirmation and
Attorney's Affidavit and Exhibits, Memorandum of
Claimant has brought an action in this Court against the State of New York
alleging that during claimant's incarceration at Bedford Hills Correctional
Facility, between February 2002 and August 2002, claimant was repeatedly raped
and sexually assaulted by defendant's employee, Correction Officer Rico Meyers.
Additionally, claimant is a party to a class action pending in Federal Court
brought on behalf of women who were allegedly raped, assaulted, and harassed by
New York State Department of Correctional Services (DOCS) officers while in the
custody of DOCS (Amador v Andrews, 03-Civ-0650 [S.D.N.Y.]). Claimant is
represented by different counsel in each court. The federal complaint alleges
violations of the 4th, 8th, and 14th Amendments of the United States
Constitution and is brought against DOCS officers and their supervisors.
Officer Meyers is one of approximately 29 named defendants in the federal action
and is alleged to have sexually harassed and abused claimant and another inmate.
The State of New York is not a named defendant in the federal action.
Claimant's counsel in this action and counsel representing the class in
Federal Court have each separately entered into a confidentiality agreement
which prohibits counsel from sharing information and documents obtained during
the course of the litigation. Additionally, claimant's counsel in this action
is prohibited from sharing with claimant anything classified as "Highly
Confidential Information" (Claimant's Supporting Affidavit, Ex. D). Upon
information and belief, claimant's attorney believes that the federal
confidentiality agreement has the same provision (Claimant's Supporting
Memorandum of Law, p 3). Thus, according to claimant's attorney, he and the
federal court cannot share any "Highly Confidential Information" received in
Claimant's Motion to Compel
On December 20, 2004, claimant served a Second Request for Production of
Documents which sought "[a]ll documents, communication, information and things
concerning Claimant Nakia Thompson or Rico Meyers produced or provided by or on
behalf of the State of New York, the Department of Correctional Services or any
person represented by the Attorney General's Office for the State of New York,
in the matter of Amador, et. al. v. Andrews, et. al., 03 Civ. 0650
(S.D.N.Y.)" (Claimant's Supporting Affidavit, Ex. E.). On January 14, 2005,
defendant served its response which stated:
"[d]efendant objects to this request on the grounds the request is over broad,
and unduly burdensome. Nevertheless, without waiving any objections, at this
time defendant is not aware of any documents that were provided in Amador,
et. al. v. Andrews, et. al., 03 Civ. 0650(S.D.N.Y.) that have not been
provided to claimant in this claim"
(Claimant's Supporting Affidavit, Ex. F). By letter dated March 14, 2005,
claimant renewed its request and merely stated, "it has come to my attention
that materials have been produced in the matter of Amador, et. al. v.
Andrews, et. al., 03-Civ. 0650 (S.D.N.Y.)." Claimant, however, did not
specifically identify any documents or materials (Claimant's Supporting
Affidavit, Ex. G). Defendant responded by letter dated March 18, 2005:
"as stated in my response dated January 14, 2005, defendant objects to this
request on the grounds the request is over broad, and unduly burdensome. As you
know in regard to all your discovery demands, I requested that our client DOCS,
search their files for documents responsive to the requests made in this Court
of Claims that are relevant to this matter. It is not relevant or even
reasonable to ask defendant to search for and provide the same documents already
produced to claimant or to ask defendant to search litigation files in another
case for information that may or may not be relevant to this court of claims
action. The Amador litigation is far broader than this Court of Claims
litigation in that it involves seventeen named plaintiffs and thirty defendants
seeking statewide injunctive and purportedly class-wide relief in addition to
individual damages. I have been informed that defendants in that action have
already produced in excess of 35,000 documents and have another 50,000 documents
prepared for production that will be produced. These documents are not sorted
by a particular plaintiff or defendant. In addition, since there is a
confidentiality agreement in the Amador matter as well in this matter, if
counsel for claimant identifies documents that have not been produced in this
claim, we will consider producing them at such time."
(Claimant's Supporting Affidavit, Ex. H).
Claimant's counsel brings the instant motion seeking an order compelling the
State to turn over all documents and information with regard to claimant or
Officer Meyers that were provided or will be provided in the Federal
Discovery in this Court is separate and distinct from the discovery conducted
in Federal Court. Claimant has already had extensive discovery in this action
and to quote claimant's attorney, "discovery in this action is approaching
completion," while discovery in Federal Court "has just begun" (Claimant's
Supporting Memorandum of Law, p 3). Claimant has not demonstrated to this Court
that defendant has failed to turn over all material and relevant information
sought or that defendant has wrongfully failed to comply with claimant's
discovery demand. Claimant's demand for any and all material provided or to be
provided in the federal action is more in the nature of a fishing expedition and
will not be countenanced by this Court, especially when to do so would thwart
the confidentiality agreements. Claimant's motion is DENIED.
Defendant cross-moves for a protective order and "for summary judgment,
dismissing various causes of action from the case, so that claimant's
[discovery] demands can be examined in light of what is [sic] the true
parameters of this case in the Court of Claims" (Cross-Motion, Supporting
Affirmation, ¶ 11). Specifically, defendant points out: "[t]he amended
claim, as drafted, does not specifically delineate separate causes of action by
numerical division, but rather appears, inartfully, to contain all its causes of
action within 2 consecutive paragraphs in the claim, paragraphs 35 and 36"
(id. at ¶ 6). The Amended Claim provides:
"35. Defendant State of New York, its agents, and employees, were negligent
and/or acted with deliberate indifference in failing adequately to: (1)
safeguard Ms. Thompson from negligence, sexual assault and emotional abuse by
Officer Meyers and other officers; (2) retrain and /or remove Officer Meyers
from active duty after his inappropriate and illegal behavior became public
knowledge; (3) provide Ms. Thompson with a safe, private and accountable system
for reporting sexual abuse; and (4) provide Ms. Thompson with adequate medical
care and psychological counseling after she complained of sexual abuse.
36. As a result of the above, Ms. Thompson was injured as set forth below. The
conduct and actions of Defendant were taken without lawful justification, and
deprived Ms. Thompson of her right to be free from cruel and unusual punishment
as stated in the Eighth Amendment of the United States Constitution and Article
1 Section 5 of the New York State Constitution. Ms. Thompson's claims also
sound in rape; sexual abuse; unwanted touching; negligent and deliberate
indifference to her safety and health; harassment; negligent and intentional
infliction of emotional distress; intimidation and retaliation; and negligent
training, supervision, and retention of a corrections officer."
( Defendant's Cross-Motion, Ex. A). Defendant argues that, "[w]ithin the causes
of action, or better the theories put forward by the claimant in the amended
claim, are many which are non actionable [sic] against the State as a matter of
law" (Defendant's Cross-Motion Supporting Affirmation, ¶ 10). Defendant's
cross-motion, while termed one for summary judgment, is not based upon
undisputed facts warranting judgment on the merits. Rather, defendant culls
seven purported causes of action from the two paragraphs of the amended claim
and argues that they are non-actionable and "should be dismissed" (id. at
¶ 14). Defendant further argues, "[t]he remaining theories, specifically
negligent retention and failure to provide adequate security, are legally
actionable; whether they are provable remains for trial" (id.). Thus,
defendant is not seeking summary judgment on the merits on those claims.
Without addressing the merits of any of the purported causes of action culled
by defendant from the inartfully drawn Amended Claim, this Court is mindful of
the liberal construction of pleadings. However, claimant herein is not
proceeding pro se and is represented by the law firm of Cravath, Swaine &
Moore, LLP. Nonetheless, the Amended Claim fails to set forth separately
numbered and stated causes of action with a factual basis for each allegation.
Rather, it lumps together various theories and elements of damages without
articulating with sufficient particularity each cause of action and the
pertinent facts upon which each cause of action is based.
In opposition to the cross-motion, claimant concedes that it does not have a
valid cause of action for intentional infliction of emotional distress or a
cause of action based upon a violation of the Eighth Amendment of the United
States Constitution and has withdrawn those claims (Claimant's Memorandum in
Opposition to Cross-Motion, Footnotes 3, 5). Additionally, claimant concedes she
has not properly asserted a claim for medical malpractice; however she maintains
that she was deprived of adequate care which does not require a certificate of
merit or any expert medical proof. Without any further amplification from
claimant, this appears to be more in the nature of an element of claimant's
damages and not an independent cause of action. Similarly, the purported cause
of action for failure to provide claimant with an adequate reporting system is
not a cognizable cause of action in this Court, but rather seems to be part of
the factual basis of claimant's proof in establishing her claims of negligent
retention of Meyers and inadequate security provided to claimant.
In light of the above, defendant might have been successful, at a much earlier
stage of this litigation, with a timely motion addressed to the pleading for a
More Definite Statement and to Separately State and Number (CPLR 3024). At this
stage, however, there has been extensive discovery, which is near completion,
and defendant is now moving for summary judgment.
"[T]he proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact" (Alvarez v Prospect
Hosp., 68 NY2d 320, 324). Notably, defendant's cross-motion is based solely
upon an attorney's supporting affirmation, someone without personal knowledge,
and is not otherwise supported by any documentary proof. "Counsel's conclusory
assertions are devoid of evidentiary fact, and as such, are insufficient to
s] burden" (Roman v Hudson Telegraph Assoc., 15 AD3d 227, 228). "Where,
as here, the moving party has not met the initial burden of setting forth
evidentiary facts sufficient to establish entitlement to judgment as a matter of
law, the motion must be denied. There is no necessity for the opposing party to
respond with evidentiary proof" (Roman v Hudson Telegraph Assoc.,
supra at 228). The "[f]ailure to make such prima facie showing requires
a denial of the motion, regardless of the sufficiency of the opposing papers "
(Alvarez v Prospect Hosp., supra at 324; see also Ayotte
v Gervasio, 81 NY2d 1062).
Accordingly, defendant's cross-motion for summary judgment is DENIED.
December 23, 2005
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of