New York State Court of Claims

New York State Court of Claims

JEFFERSON v. THE STATE OF NEW YORK, #2005-032-021, Claim No. 109632, Motion Nos. M-69162, M-69462


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):
M-69162, M-69462
Cross-motion number(s):

Claimant's attorney:
Donnell Jefferson, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kevan J. Acton, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 24, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


By separate motions, claimant moves this Court for an order striking defendant's affirmative defenses and compelling responses to his discovery demands. In opposing this relief, defendant argues that claimant has failed to raise allegations with respect to defendant's conduct, therefore, his motion to strike these defense should be denied. With respect to the discovery motion, defendant contends that certain materials will be provided, and his remaining requests are improper.

In this action, claimant alleges that, as a result of defendant's failure to adhere to institutional guidelines and to adequately screen inmates working with sensitive personal information, claimant suffered identity theft. Claimant alleges, inter alia, that he notified defendant that another inmate, Lou Early, had fraudulently submitted tax refunds to the Internal Revenue Service in claimant's name, and that defendant failed to take any measures, including notifying appropriate law enforcement authorities. Thereafter, defendant interposed an answer and alleged the defenses of failure to state a cause of action, claimant's culpable conduct, claimant's injuries were not caused by defendant or its agents, failure to plead the date, time and place the claim accrued, and untimeliness.

In furtherance of his action, claimant made certain discovery demands: demands for information regarding witnesses to the alleged occurrence; admissions/statements made by defendant regarding the occurrence; expert disclosure; all documents that are "necessary" and "relevant" to his claim; Early's institutional records relating, inter alia, to discipline, record of convictions, employment profile, parole; records regarding the investigation by the Inspector General; and documents requested from the Albany County District Attorney regarding Early. Upon defendant's failure to timely respond, claimant brought the instant motions to compel and strike affirmative defenses.

Ultimately, defendant served claimant with responses after claimant brought his motion to compel. Based on the submissions, given claimant failed to provide any information as to when the occurrence was alleged to have taken place, the Court determines that it was not improper for defendant to indicate it could not respond to claimant's request for witnesses and potential witnesses to the occurrence, as such demand lacked specificity (see Carp v Marcus, 116 AD2d 854, 855 [3d Dept 1986]).

Next, as defendant states it does not possess any admissions/statements that relate to this claim and has not retained an expert, a party "may not be compelled to produce information that does not exist or which he does not possess" (Corriel v Volkswagen of America, Inc, 127 AD2d 729, 731 [2d Dept 1987]). Further, given that claimant did not provide authorizations for Early's records, and such records are confidential in nature, the Court will conduct an in camera inspection of relevant institutional records. The Court determines that the records that are relevant to claimant's action are those records pertaining to institutional discipline, his record of convictions and his employee profile. To facilitate the Court's review, defendant is directed to submit two copies of each document, a redacted copy indicating the information it seeks to protect from disclosure and an unredacted copy. Such submissions shall be made within 45 days of filing of this Decision and Order. After reviewing these documents, the Court will issue further directions indicating what, if any, portion of the documents in question should be provided to claimant. All remaining documents from Early's institutional records are deemed not to be material or necessary to claimant's action and, as such, not discoverable (see Walsh v Liberty Mut. Ins. Co., 289 AD2d 842, 843, [3d Dept 2001]; CPLR 3101 [a]).

With respect to documents relating to the investigations of the Inspector General, defendant has indicated its responses are forthcoming and, as such, shall provide these materials in a reasonable time. Next, claimant's demand seeking all materials that are necessary and relevant is overbroad and lacks specificity and, as such, improper (see Carp v Marcus, supra). Finally, claimant's request directed to the Albany County District Attorney is not properly before this Court inasmuch as such office is not a party to this action.

Turning to claimant's motion to strike defendant's affirmative defenses, the Court denies this motion. The moving party bears the initial burden of challenging the factual basis of the defense (see, Arriaga v Michael Laub Co., 233 AD2d 244 [1st Dept 1996]). The defendant is entitled to the benefit of every reasonable construction of the pleading, and "[i]f there is doubt as to the availability of a defense, it should not be dismissed" (Duboff v Board of Higher Educ. of City of New York, 34 AD2d 824 [2d Dept 1970]). Here, claimant's conclusory submissions are insufficient to strike the affirmative defenses (CPLR 3018[b]; 3211[b]). Rather, the affirmative defenses have the appearance of merit and resolution of the issue must await trial.

Accordingly, claimant's motion to strike is denied. Claimant's motion to compel is denied as to all requests, except those materials herein described that defendant is to provide in a reasonable time and those materials directed to the Court for in camera inspection. As to those materials, claimant's motion is held in abeyance until further order of this Court.

February 24, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motions:

1. Notice of Motion to Strike Affirmative Defense filed September 29, 2004;

2. Affidavit of Donnell Jefferson sworn to September 27, 2004; exhibits A-i -A-iv annexed;

3. Affirmation in Opposition of Kevan Acton filed November 15, 2004;

4. Notice of Motion to Compel filed December 8, 2004;

5. Affidavit of Donnell Jefferson sworn to November 29, 2004; unmarked exhibits annexed;

6. Affirmation of Kevan J. Acton filed December 16, 2004;

7. Reply Affidavit of Donnell Jefferson filed January 4, 2005;

Filed papers: Claim, Verified Answer, Discovery Demands, Defendant's Response