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
Claimant opposes the cross-motions for
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
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
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.
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
(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,
(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;
(11) CO Ayers dated August 15, 2005.
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
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
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.
Claim, filed October 27, 2004.
Notice of Motion No. M-70811, dated October 11, 2005 and filed October 14,
Affidavit of Robert Cardew, in support of motion, sworn to October 11, 2005 and
filed October 14, 2005.
Notice of Cross-Motion No. CM-70910, dated November 2, 2005 and filed November
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.
Notice of Motion No. M-70937, dated November 7, 2005 and filed November 14,
Affidavit of Robert Cardew, in support of motion, sworn to November 7, 2005,
Notice of Motion No. M-70966, dated November 15, 2005 and filed November 21,
Affidavit of Robert Cardew, in support of motion, sworn to November 15, 2005,
Affidavit of Robert Cardew, in opposition to Cross-Motion No. CM-70910, sworn
to November 3, 2005 and filed November 7, 2005.
Notice of Motion No. M-70911, dated November 1, 2005, and filed November 4,
Affidavit of Robert Cardew, in support of motion, sworn to November 1, 2005,
Notice of Cross-Motion No. CM-70978, dated November 23, 2005, and filed
November 25, 2005.
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.
Affirmation of Robert Cardew, in opposition to Cross-Motion Nos. CM-70910 and
CM-70978, dated November 28, 2005 and filed November 30, 2005.