New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2006-030-542, Claim No. 110582, Motion No. M-71388


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):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 23, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 7 were read and considered on Claimant’s motion

to compel discovery brought pursuant to Civil Practice Law and Rules §3124:

1,2 Notice of Motion to compel Discovery; Affidavit in Support by Johnathan Johnson, Claimant, and attached exhibit

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibits
  1. Letter from Johnathan Johnson received April 7, 2006
5-7 Filed Papers: Claim, Answer, Claimant’s Disclosure Request filed November 23, 2005Johnathan Johnson alleges in Claim number 110582 that Defendant’s agents failed to provide adequate and timely medical care and wrongfully confined him while he was incarcerated at Downstate Correctional Facility. More specifically, he alleges that he was denied sick-calls from October 31, 2003 through November 2, 2003, and thus suffered an exacerbation of his allergies. With regard to his wrongful confinement cause of action, he alleges that he was denied recreation on November 1, 2003 based upon a false “deprivation order.” [Claim No. 110582, ¶ 2].

In its Answer, in addition to a general denial, Defendant asserts two affirmative defenses, including claimant’s own culpable conduct or the culpable conduct of others for whom the State has no legal responsibility.

Claimant moves to compel disclosure by the Defendant of items requested in “Claimant’s Disclosure Request” filed in the Office of the Chief Clerk of the Court of Claims on November 23, 2005.

Civil Practice Law and Rules §3101, setting forth the scope of disclosure in a civil case and applicable in the Court of Claims [See Court of Claims Act §9(9)], provides in pertinent part that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of any action, regardless of the burden of proof . . . ”

When a party fails to respond in some fashion to a demand, the other party may make a motion to compel such as this one. Civil Practice Law and Rules §§3124, 3126. The party making the motion should append a copy of the demand at issue. Notably, disclosure demands - which are by nature documents served on another party - are required to be filed with the Chief Clerk of the Court of Claims. See 22 NYCRR §206.5(c). Similarly, responses to disclosure should be filed with the Chief Clerk as well.

Apparently, Defendant did respond to Claimant’s disclosure request as required, twice, by letters dated January 6, 2006 and March 8, 2006. [Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General, ¶ 5, Exhibits 4 and 5]. As explained by the Assistant Attorney General, when the request was first received, it was assigned to an investigator to determine whether the documents requested existed and were available. [ibid. ¶5]. Thereafter, she wrote to Claimant with an item by item response. [ibid. ¶5, Exhibit 4]. Subsequently, when other records became available, Defendant wrote to Claimant again, advising of the cost of duplication, totaling $18.25, and that documents would be produced upon payment of the reasonable photocopying costs. [ibid. ¶6, Exhibit 5].

Claimant’s Disclosure Request contains six (6) items. As noted earlier, discovery of matter that is material and necessary is liberally allowed. Based upon the causes of action asserted in the Claim the requests are appropriate.

At this juncture, the only items indicated as not available for production to Claimant upon payment of a fee are “[4] . . . a copy of the November 1, 2003 restraining order and deprivation order, [which include misbehavior reports] issued to claimant at . . . Downstate . . . ”; and

“[6] . . . a copy of ‘all’ to-n-from, from . . . Downstate . . . from October 31, 2003, thru - November 3, 2003, pertaining to Claimant [including memorandums to the superintendent, captains, deputy superintendent for security etc.” [Claimant’s Disclosure Request filed November 23, 2005]. With respect to these two items, Defendant indicates that the November 1, 2003 restraining order “cannot be located”, and that no internal memoranda and/or correspondence concerning Claimant for the period from October 31, 2003 through November 3, 2003 “can be located at this time.” [Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General, Exhibit 5].

Accordingly, although the responses may not be what Claimant wants to hear, Defendant has nonetheless responded to the discovery demand as required.

A review of the Clerk’s file shows that Claimant has not been granted poor person status, although by prior Order of this Court, Claimant's filing fee was reduced to $15.00 pursuant to Court of Claims Act §11-a (1), and Civil Practice Law and Rules §1101(f) . (March 17, 2005, Sise, P.J.). There is no indication that Claimant has paid the $18.25 duplication fee indicated and, until the fee is paid, Defendant need not produce those documents. Accordingly, the present motion is denied as moot.

The Court notes, however, that a demand for discovery is a continuing one, and should Defendant subsequently learn that the disciplinary documents and internal memoranda requested can be located, Claimant should be advised of the cost of duplication immediately, with a copy to the Court, and, upon payment of any fee, such documents should be forwarded to Claimant.

Claimant’s motion to compel [M-71388] is in all respects denied.

May 23, 2006
White Plains, New York

Judge of the Court of Claims