New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2006-028-543, Claim No. 110725, Motion No. M-71259


Synopsis


Claimant's second motion to compel discovery is granted to the extent the Court orders in camera review of incident reports and security post descriptions.


Case Information

UID:
2006-028-543
Claimant(s):
RAYMOND GONZALEZ, a/k/a RAYMOND MORALES
Claimant short name:
GONZALEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110725
Motion number(s):
M-71259
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
RAYMOND GONZALEZ, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Geoffrey B. Rossi, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 12, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion pursuant to CPLR § 3124 to compel disclosure:

  1. Notice of Reconsideration for Motion to Compel Discovery and Supporting Affidavit of Raymond Gonzalez, pro se, filed January 30, 2006;
  1. Affirmation in Opposition of Geoffrey B. Rossi, AAG (Rossi Affirmation) filed February 27, 2006, with annexed Exhibits A & B;[1]

3) Claimant's Notice for Discovery and Inspection filed June 29, 2005;

4) Claimant's Amendment of Notice for Discovery and Inspection filed September 12, 2005 (Amended Discovery Notice);

  1. State's Response to Amendment of Notice for Discovery and Inspection filed November 3, 2005 (Amended Discovery Response).
Filed Papers: Claim filed April 4, 2005; Verified Answer filed May 12, 2005.


Claimant, an inmate appearing pro se, moves for the second time for an order compelling disclosure pursuant to CPLR § 3124.[2] The State of New York (hereinafter "State") opposes the motion.

This Claim alleges the State's negligent supervision of inmates resulted in Claimant's attack by an unknown inmate in Elmira Correctional Facility on December 21, 2003. Thereafter, Claimant served upon the State two demands for discovery and inspection filed June 29, 2005 and September 12, 2005, but did not receive timely responses from the State. Claimant's first motion to compel responses to his discovery demands was denied as moot because the State represented that it had served Claimant with responses to said demands simultaneously, albeit late, with its response to that first motion (Gonzalez a/k/a Morales v State of New York, Ct Cl, November 9, 2005, Lebous, J., Claim No. 110725, Motion No. M-70789 [UID No. 2005-019-578]).[3] Now, by way of this motion, Claimant challenges the sufficiency of the State's responses to his demands for discovery and inspection.

The Court has reviewed Claimant's notices for discovery and inspection filed June 29, 2005 and September 12, 2005, the State's response thereto filed November 3, 2005, as well as the instant motion papers. The Court will review the four items that appear to be the source of contention between the parties.

Claimant requested a copy of the New York State Department of Correctional Services Employees Handbook (Amended Discovery Notice, ¶ 2). The State's response indicated that the Handbook would be produced in redacted form upon Claimant's payment of photocopying costs of .25¢ per page for 64 pages (Amended Discovery Response, ¶ 2). It is well-settled that the State has the right to require Claimant to pay reasonable photocopying costs of demanded discovery documents (Gittens v State of New York, 175 AD2d 530 [1991]). As such, the Court finds that the State's response to this discovery demand was proper.

Claimant's next two demands will be discussed together since they involve similar security concerns. Claimant demanded the production of the "Individual Security post descriptions for all the officers assigned to E-Block, at Elmira Correctional Facility, on December 21, 2003 at the 3-11 tour" (hereinafter "Security Post Descriptions"; Amended Discovery Notice, ¶ 1). Claimant also demanded production of "[a]ny and all incidents of Inmate on Inmate *assaults* occured [sic] in 'E-Block' of Elmira Correctional Facility, between 1/1/02 - 12/21/03" (hereinafter "Incident Reports"; Amended Discovery Notice, ¶ 7). The State objects to producing both the Security Post Descriptions and the Incident Reports alleging these documents contain confidential material the release of which would be detrimental to security concerns at Elmira Correctional Facility (Amended Discovery Response, ¶ ¶ 1 & 7).

Claimant's requests for the Security Post Descriptions and the Incident Reports must be viewed in the context of his theory of liability, namely negligent supervision. It is well-settled that in order to establish liability in an inmate-on-inmate assault case, 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 [2002]). Obviously, since Claimant alleges he was assaulted by an unknown inmate, the second prong is not relevant here. Although it is unclear whether Claimant is alleging the State knew or should have known that Claimant was personally at risk, at the very least it is clear that Claimant is arguing that the State knew or should have known that the location of this incident and the time of this incident during inmate movement were places and/or times of heightened risk. As such, the Court finds that the Security Post Descriptions and the Incident Reports may well contain information which is material and relevant to Claimant's cause of action.

Consequently, the State is directed to produce two copies of the Security Post Descriptions and the Incident Reports as outlined in Claimant's Amended Discovery Notice to the Court for an in camera review. One copy of each document 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.

Finally, Claimant requested copies of the E-Block log book dated December 21, 2003 (Amended Discovery Notice, ¶ 5). The State originally represented that it would provide this item to Claimant within 30 days of its original discovery response which was filed on November 3, 2005 (Amended Discovery Response, ¶ 5). Although the State has no underlying objection to the production of this item, it appears the State has encountered a delay longer than originally anticipated in obtaining this document. The Court finds no prejudice to Claimant in providing the State additional time to obtain this item. As such, the Court will adjourn this portion of Claimant's motion to sixty (60) days from the filing date of this Decision and Order to coincide with the State's submission of documents for in camera review. At the time the State makes its in camera submission, it should provide Claimant with a copy of the E-Block log book dated December 21, 2003 or provide the Court and Claimant with a status report regarding the same.

In view of the foregoing, it is ORDERED that Claimant's motion to compel discovery, Motion No. M-71259, is GRANTED IN PART and DENIED IN PART. In accordance with the foregoing, the State is directed to submit the aforementioned 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 discovery relating to those specific items.


April 12, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1].The Rossi Affirmation mistakenly references paragraphs 3(a), 3(c), and 3(d) of Claimant's moving papers, which should read as references to paragraphs 5(a), 5(c), and 5(d) thereof (Rossi Affirmation, ¶ ¶ 6 & 7).
[2].The Court deems Claimant's motion as seeking to compel disclosure, rather than one for reargument and/or renewal since Claimant's prior motion to compel did not address the substance of the discovery demands and responses.
[3].Selected unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm