New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2005-010-058, Claim No. 108000, Motion Nos. M-70680, CM-70803


Discovery motion, claimant not entitled to information, re: ongoing investigation.

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):
Terry Jane Ruderman
Claimant's attorney:
CRAVATH, SWAINE & MOORE, LLPBy: Lawrence E. Buterman, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Gail Pierce-Siponen, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 23, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 Law............................................................................................................................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............2

Attorney's Affidavit and Exhibits, Memorandum of Law........................................3

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 discovery.

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 Action.

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's Cross-Motion
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 sustain defendant[
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
White Plains, New York

Judge of the Court of Claims