New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2005-019-588, Claim No. 110023, Motion Nos. M-70811, M-70966, M-70937, M-70911, CM-70910, CM-70978


Synopsis


Claimant's four separate motions to compel the defendant to respond to discovery demands are denied; the State's cross-motions for protective orders are granted.

Case Information

UID:
2005-019-588
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-70811, M-70966, M-70937, M-70911
Cross-motion number(s):
CM-70910, CM-70978
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:
December 8, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, has made four separate motions seeking to compel the defendant to respond to his numerous discovery demands. The State of New York (hereinafter "State") opposes each motion and cross-moves for a protective order with respect to each of the discovery demands at issue.[1] Claimant opposes the cross-motions for protective orders.


The underlying claim asserts that claimant was assaulted by another inmate, Jonathan Cardwell, using a razor at Elmira Correctional Facility on September 15, 2004. The theory of liability asserted in this claim is one of negligent supervision.


The court will attempt to outline the discovery history in this matter. This claim has already been the subject of three prior Decisions & Orders addressing various discovery issues the details of which are not relevant here.[2] By all accounts, claimant has served at least six demands for discovery and inspection as follows:

(1) Notice of Demand for Production of Documents for Discovery and Inspection dated December 20, 2004;

(2) Second Notice of Demand for Production of Documents for Disclosure and Inspection dated August 9, 2005;

(3) Third Notice of Demand for Production of Documents for Disclosure and Inspection dated September 12, 2005 [Fire & Safety Officer];

(4) Fourth Notice of Demand for Production of Documents for Disclosure and Inspection dated September 13, 2005 [Office of General Services];

(5) Fifth Notice of Demand for Production of Documents for Disclosure and Inspection dated September 22, 2005;

(6) Sixth Notice of Demand for Production of Documents for Disclosure and Inspection dated October 13, 2005.[3]


Additionally, claimant has also served at least eleven "Notice(s) of Demand To Answer Interrogatories and For Production of Documents For Inspection" directed to various State employees employed at the Elmira Correctional Facility and/or by the Department of Correctional Services as follows:


(1) William Bills, Senior Counselor and Team Leader for the Crisis Intervention Unit, dated September 7, 2005;

(2) Kenneth Bird, Electronic Equipment Technician, dated September 8, 2005;

(3) R. Chorney, Correction Officer, dated September 14, 2005;

(4) Plant Superintendent and/or Supervisor, dated September 9, 2005;

(5) Glenn S. Goord, Commissioner, dated September 6, 2005;

(6) G. Miles, Correction Officer, dated September 15, 2005;

(7) Sergeant Santiago, dated September 21, 2005;

(8) S. Sharp, Correction Officer, September 20, 2005;

(9) Sergeant Judd C. Sullivan, Jr., dated September 16, 2005;

(10) CO Grier dated September 19, 2005;[4]

(11) CO Ayers dated August 15, 2005.[5]


Claimant also served a Notice to Produce Names and Addresses of all Witnesses and Expert Witnesses and other information dated December 9, 2004.


All of the motions to compel and cross-motions for protective orders will be discussed jointly since the issues are intermixed.


Claimant asserts that the State has failed to answer in whole or in part his six demands for discovery and inspection and eleven separate interrogatories all served within the past year. The State concedes that it has not responded to the itemized discovery demands, but argues that the demands are all overly burdensome, vague, and neither material or relevant to this claim. The State seeks protective orders to prevent it from having to respond to the various demands and interrogatories.


CPLR 3103 (a) states that "[t]he court may at any time...make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."


A review of all of claimant's discovery demands and interrogatories leads this court to the inescapable conclusion that these demands contain repetitive requests, information that goes beyond the scope of normal discovery, and/or information which is not material and relevant to this case. For example, many of claimant's interrogatories are framed in the context of hypothetical questions. (St's Exs A, H, I, J, K and L). Other interrogatories inquire as to how temperature and humidity affect the calibration of metal detectors. (St's Ex C). The discovery requests directed to the Office of General Services request documents relating to the process of bidding and granting of contracts, as well as future proposals for lighting in the gymnasium yard. Other demands seek claimant's own files dating back to the year 1983. (St's Ex N). In short, the court finds that claimant's demands and interrogatories are improper for these and the other reasons outlined by the State. (Blank v Schafrann, 180 AD2d 886, 887-888; Rush v Insogna, 119 AD2d 879, 880). Additionally, the court finds claimant's demands amount to nothing more than a method of harassment with repetitive requests and/or information that goes beyond the scope of normal discovery. Moreover, it is not the function of the court to prune each of these demands or interrogatories, rather each demand and interrogatories should be and will be vacated in their entireties. (Blasi v Marine Midland Bank of Southeastern N.Y., N.A., 59 AD2d 932).


As such, claimant's motions to compel discovery responses to the aforementioned demands will be denied. Additionally, the court finds that claimant's successive use of six demands for discovery and inspection and eleven interrogatories within one year warrants granting the State's cross-motions requesting protective orders. Consequently, claimant's six demands and eleven interrogatories are stricken and the State need not respond thereto.


With respect to future discovery demands, the court will not at this time prohibit claimant from serving additional discovery demands and/or interrogatories, but claimant is forewarned that such demands should be limited in number and length and relate to those matters which are material and relevant to the issues at hand.

Finally, the court declines the State's suggestion of an in camera inspection and claimant's suggestion of a conference between the court and the parties.


Accordingly, for the reasons stated above, it is ORDERED that claimant's motions to compel discovery responses, Motion Nos. M-70811, M-70911, M-70937 & M-70966, are DENIED; and the State's cross-motions for protective orders related to outstanding discovery demands and interrogatories, CM-70910 & CM-70978, are GRANTED.




December 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 these motions:

  1. Claim, filed October 27, 2004.
  2. Notice of Motion No. M-70811, dated October 11, 2005 and filed October 14, 2005.
  3. Affidavit of Robert Cardew, in support of motion, sworn to October 11, 2005 and filed October 14, 2005.
  4. Notice of Cross-Motion No. CM-70910, dated November 2, 2005 and filed November 4, 2005.
  5. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion No. M-70811 and in support of Cross-Motion No. CM-70910, dated November 2, 2005 and filed November 4, 2005.
  6. Notice of Motion No. M-70937, dated November 7, 2005 and filed November 14, 2005.
  7. Affidavit of Robert Cardew, in support of motion, sworn to November 7, 2005, with attachment.
  8. Notice of Motion No. M-70966, dated November 15, 2005 and filed November 21, 2005.
  9. Affidavit of Robert Cardew, in support of motion, sworn to November 15, 2005, with attachment.
  10. Affidavit of Robert Cardew, in opposition to Cross-Motion No. CM-70910, sworn to November 3, 2005 and filed November 7, 2005.
  11. Notice of Motion No. M-70911, dated November 1, 2005, and filed November 4, 2005.
  12. Affidavit of Robert Cardew, in support of motion, sworn to November 1, 2005, with attachment.
  13. Notice of Cross-Motion No. CM-70978, dated November 23, 2005, and filed November 25, 2005.
  14. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion Nos. M-70911, M-70937 and M-70966, dated November 23, 2005 and attached exhibits.
  15. Affirmation of Robert Cardew, in opposition to Cross-Motion Nos. CM-70910 and CM-70978, dated November 28, 2005 and filed November 30, 2005.



[1]The State's cross-motion, CM-70910, is directed towards claimant's motion, M-70811. The State's cross-motion, CM-70978, is directed towards claimant's motions M-70911, M-70937, and M-70966.
[2]Cardew v State of New York, Ct Cl, March 8, 2005, Lebous, J., Claim No. 110023, Motion No. M-69700 [UID No. 2005-019-515]; Cardew v State of New York, Ct Cl, June 9, 2005, Lebous, J., Claim No. 110023, Motion No. M-69700 [UID No. 2005-019-537]; Cardew v State of New York, Ct Cl, August 24, 2005, Lebous, J., Claim No. 110023, Motion No. M-70508 [UID No. 2005-019-561]. Selected unreported decisions from the Court of Claims are available via the Internet at
[3]The Sixth Notice is not contained in the court's file, but is attached to the State's cross-motion, CM-70978, as Exhibit N.
[4]The Interrogatory to CO Grier is not contained in the court's file, but is attached to the State's cross-motion, CM-70978, as Exhibit J.
[5]The Interrogatory to CO Ayers is not contained in the court's file, but was provided to the court by the State upon request of chambers.