Claimant, an inmate proceeding pro se, moves for the second time for sanctions
against the Office of the Attorney General in relation to discovery matters.
(CPLR 3126). The State of New York (hereinafter "State") opposes the
This claim arises from claimant's allegations that he was prevented from
wearing his prescription sunglasses inside Elmira Correctional Facility despite
a medical permit to do so. Claimant previously filed a motion in which he
sought sanctions against the Office of the Attorney General for allegedly
threatening the filing of a dispositive motion against him if he failed to sign
and return a medical authorization form.
Claimant also requested his signed medical authorization form be returned to
him. This court denied claimant's request for sanctions finding the State's
conduct did not amount to a threat nor rise to the level of conduct warranting
sanctions. (Wigfall v State of New York
, Ct Cl, June 21, 2004, Lebous,
J., Claim No. 106859, Motion Nos. M-68037 & M-68394, pp 4-5 [ UID No.
With respect to the medical authorization form itself, as part of the prior
motion, the State represented that it would await further instruction on how to
proceed prior to obtaining claimant's medical records with said authorization
form. (Wigfall, Motion Nos. M-68037 & M-68394, p 4). Obviously,
this statement left both the court and claimant with the impression that the
State had not yet obtained claimant's medical records by using, the now
disputed, medical authorization form. By way of this motion, claimant contends
that the State had already obtained his medical records at the time it made the
aforesaid representation to the court. Claimant argues that since that
representation has now been proven false that sanctions should be levied against
the Office of the Attorney General. For its part, the State candidly concedes
that it has since uncovered that the assistant attorney general in charge of the
case at the time was unaware that a State investigator had already obtained
claimant's medical records with the use of the medical authorization form at the
time of the prior motion.
In this court's view, there is no basis for sanctions against the Office of the
Attorney General. Although there may have well been some confusion in the
Office of the Attorney General leading to the misrepresentation in connection
with the prior motion such does not rise to the level of an alleged conspiracy
as alleged by claimant or, more to the point, "willful", "contumacious", or bad
faith conduct so as to warrant sanctions under CPLR 3126. (Fitterer v Gus
Riedlinger's Towing Serv., 271 AD2d 403, 404).
Finally, the parties have made various requests in connection with recent
discovery demands from claimant. For instance, claimant requested that the
court direct the State's responses be "expediently completed." (Claimant's
Affidavit, ¶ 10). The State has requested the court authorize the release
of claimant's medical records pursuant to paragraphs 2 and 3 of claimant's most
recent demand. However, since neither party submitted claimant's discovery
demands with their papers herein, the court declines to address any discovery
issue. In any event, the parties are instructed to attempt to resolve this and
future discovery disputes without the need for further court intervention.
Accordingly, in view of the foregoing, it is ORDERED that Motion No. M-69356 is
DENIED in accordance with the foregoing.
DECISION AND ORDER, Lebous, J., filed July 7, 2004.
Notice of Motion No. M-69356, dated October 27, 2004, and filed November 4,
Affidavit of Joseph Wigfall, in support of motion, dated October 27, 2004, with
Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated December
6, 2004, and filed December 8, 2004, with attached exhibit.
Affirmation of James E. Shoemaker, Esq., former AAG, in opposition to motion,
dated December 9, 2004, and filed December 13, 2004.
"Reply Answer to Affirmation in Opposition", of Joseph Wigfall, in support of
motion, dated December 17, 2004, and filed December 22, 2004.