New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2005-019-515, Claim No. 110023, Motion No. M-69700


Synopsis


Claimant's motion to compel is granted to the extent the court orders in camera review of inmate's disciplinary history.

Case Information

UID:
2005-019-515
Claimant(s):
ROBERT CARDEW
Claimant short name:
CARDEW
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110023
Motion number(s):
M-69700
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ROBERT CARDEW, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 8, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for an order compelling the defendant to respond to his discovery demands and/or striking the defendant's answer and/or affirmative defenses for its failure to provide said responses pursuant to CPLR 3126. The State of New York (hereinafter "State") requests additional time to respond to claimant's various discovery demands.

On September 15, 2004, claimant alleges he was assaulted by another inmate, Jonathan Cardwell, due to the negligent supervision of correction officers at Elmira Correctional Facility. This claim was filed with the Clerk of the Court on October 27, 2004. The State filed a Verified Answer on November 24, 2004.


On or about December 9, 2004, claimant mailed to the State a discovery demand entitled "Notice To Produce Names and Addresses Of All Witnesses And Expert Witnesses And Other Information." On or about December 20, 2004, claimant mailed to the State a second discovery demand entitled "NOTICE OF DEMAND FOR PRODUCTION OF DOCUMENTS FOR DISCOVERY AND INSPECTION." On January 4, 2005 and January 18, 2005, claimant mailed letters to the State requesting responses to said demands. The State never responded to the discovery demands or subsequent letters. On February 2, 2005, claimant filed this instant motion seeking to compel the State to respond to his discovery demands and/or striking the State's answer and/or affirmative defenses for its failure to respond to those demands. In opposition, the State indicates that it has provided a partial response under separate cover to claimant, but will need an additional 60 days to obtain the information and numerous documents requested. Additionally, to the extent that claimant's discovery demands request the disciplinary history and related disciplinary hearing history of claimant's alleged attacker, Jonathan Cardwell, the State indicates it will not submit such information directly to claimant, but would present it to this court for an in camera review.


It is well-settled that in order to establish liability in an inmate-on-inmate assault case, a claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act. (Sanchez v State of New York, 99 NY2d 247). As such, inmate Cardwell's propensity to commit violent acts prior to this attack is relevant on the issue of notice to the State of inmate Cardwell's violent propensities and risk to claimant. For this reason, the State is directed to produce two copies of inmate Cardwell's disciplinary history and disciplinary hearing history including violent misbehavior reports, if any, to the court for an in camera review. One copy is to be unredacted and the second copy is to be redacted in a manner which the State believes presents information relevant to this claim while removing privileged or irrelevant information. These records are to be provided to the court within sixty (60) days of the filing date of this Decision and Order. After reviewing these documents, the court will issue a further decision regarding whether and how any portion of these documents are to be provided to claimant.


Accordingly, in view of the foregoing, it is ORDERED that claimant's motion, No. M-69700, is GRANTED to the extent that the State is directed to submit the foregoing documents to the court for an in camera review within sixty (60) days from the filing date of this Decision and Order. Upon reviewing said documents, the court will issue a further decision regarding claimant's motion to compel. Further, the State is granted an additional 60 days to obtain the additional information and documents requested in order to respond fully to claimant's discovery demands.


March 8, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Claim, filed October 27, 2004.
  2. Verified Answer, filed November 24, 2004.
  3. Notice of Motion No. M-69700, dated January 28, 2005, and filed February 2, 2005.
  4. Affidavit of Robert Cardew, in support of motion, sworn to January 28, 2005.
  5. Memorandum of Law, in support of motion, dated January 23, 2005.
  6. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated February 16, 2005, and filed February 18, 2005.