New York State Court of Claims

New York State Court of Claims

KADRY v. THE STATE OF NEW YORK, #2006-030-583, Claim No. 109883, Motion No. M-72516


Synopsis


Pro se inmate’s Motion to compel disclosure and/or impose sanctions in the form of prohibiting any introduction of evidence by Defendant per CPLR §§3124 and 3126 denied. Defendant produced documents with responding papers, at no cost to Claimant, and indicated that the sheer volume of requested items caused delay. Because no order extant directing disclosure, Defendant has not refused to obey an order to disclose per CPLR §3126. Also no showing of willfulness, when Claimant’s attempts at consent discovery began in June, 2006, and information sought has now been furnished.

Case Information

UID:
2006-030-583
Claimant(s):
MOHAMED KADRY
Claimant short name:
KADRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109883
Motion number(s):
M-72516
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
MOHAMED KADRY, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
November 28, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers, numbered 1 to 9 were read on Claimant’s motion to “prohibit disobedient defendant from opposing designated claim (sic)”, which the Court has treated as an application for an order to compel disclosure and/or to impose sanctions pursuant to Civil Practice Law and Rules §§3124 and 3126:
1,2,3 Notice of Motion, Affidavit in Support by Mohamed Kadry, Claimant, sworn to November 7, 2006 and attached exhibits; Memorandum of Law

4 Affirmation by Dewey Lee, Assistant Attorney General, dated November 21, 2006 and attached exhibits

5-9 Filed Papers: Claim, Answer, Notice for Discovery and Production of Documents and Things, Interrogatories & Request for the Production of Documents and Things, Response to Claimant’s Discovery Demands

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Claimant alleges in Claim Number 109883 that Defendant’s agents negligently failed to provide him with adequate medical care while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at Downstate Correctional Facility (Downstate) and Coxsackie Correctional Facility (Coxsackie). Specifically, Mr. Kadry states that he was improperly given medication to treat hepatitis - when he actually suffered from diabetes - commencing on August 7, 2003 until an unspecified date, and developed vocal chord paralysis and removal of his gallbladder in September 2003 as a result.

In his Affidavit in Support of the present motion, Claimant asserts that on or about June 8, 2006 he served a Notice of Discovery for the Production of Documents and Things, and the First set of Interrogatories [Exhibit C], upon Defendant [Exhibit D], requesting a response within thirty (30) days.[1] Claimant sent a follow-up letter to the Assistant Attorney General on August 1, 2006, having not received a response [Exhibits F and G], and an additional request by letter on September 21, 2006 [Exhibit H]. As of the date of his affidavit, no response had been received. He asks the Court to prohibit defendant from offering any evidence upon the trial of the action as a sanction for willful failure to disclose. Civil Practice Law and Rules §3126.

In an Affirmation in response, the Assistant Attorney General acknowledges his failure to respond to the discovery requests in a timely fashion, and apologizes for the delay, indicating that the documents obtained from DOCS were voluminous. He has appended a copy of the documents obtained to his responding papers, and indicates these have been furnished to the Claimant without a demand for payment in light of the late response.

By letter dated October 3, 2006 the parties were notified that trial of the matter was scheduled for Friday, December 8, 2006.

Pursuant to general disclosure principles, a party is entitled to “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . . ” Civil Practice Law and Rules §3101(a). Interrogatories are one disclosure device available to a litigant, and are frequently used in lieu of depositions when an incarcerated individual is a party. See generally Civil Practice Law and Rules §§3130, 3131. Any objections to questions are to be made with “reasonable particularity”[2] and the responding party is not required to respond to “. . . interrogatories [that] are unduly broad and oppressive . . .demand extensive amounts of irrelevant information, [and] call for opinions and interpretations . . . ” Vancek v International Dynetics Corporation, 78 AD2d 842 (1st Dept 1980); see also Kamerman v Kolt, 187 AD2d 564 (2d Dept 1992). The responding party is also not required to anticipate what information the interrogatories are seeking, but rather may respond only to the actual question posed. See Meraner v Albany Medical Center, 211 AD2d 867, 868 (3d Dept 1995), lv dismissed, 85 NY2d 968 (1995).

With regard to the discovery requests that are the subject of this motion, Defendant has responded to the request with a Response to Claimant’s Discovery Demands, and by production of a letter response from Lee-Ann Maier, Nurse Administrator at Downstate, dated August 23, 2006, indicating some employee names referenced in Claimant’s Ambulatory Health Record [AHR]; a letter response from Dr. Jon Miller from Coxsackie, dated August 28, 2006, indicating employee names and attaching facility directives concerning tuberculosis policy; and what appears to be Claimant’s complete AHR for the period from August 2003 through March 2006, including some documents from outside health providers not under the control of DOCS. These records include the names of medical personnel who treated Claimant at the facility. As noted in the Response to Claimant’s Discovery Demands, only the State of New York is a proper party in this litigation. St. Agnes Hospital and Albany Medical Center are not facilities owned or operated by the State of New York and are, therefore, not represented by the Office of the Attorney General. Copies of any records from St. Agnes Hospital or from Albany Medical Center should be sought directly from those institutions.

Civil Practice Law and Rules §3126 allows a Court to impose sanctions for a party’s willful failure to disclose information that a Court finds should have been disclosed, or for a failure to obey an order to disclose. Here, the State has not refused to obey a court order, as there is no order extant directing disclosure. See Civil Practice Law and Rules §3124. Additionally, the State has now provided the information requested - rendering any application to compel moot - and there is no conclusive evidence that the State willfully failed to respond earlier. Issue was joined in April 2005 when the State served its Answer. Claimant’s attempt to obtain consent discovery commenced in June 2006, and has now been successful.

Accordingly, Claimant’s motion [M-72516] to prohibit Defendant from introducing any evidence as a sanction to be imposed pursuant to Civil Practice Law and Rules §3126(2) is hereby denied.

November 28, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All documents served on a party must be filed in the Office of the Chief Clerk of the Court of Claims as required. See 22 NYCRR §206.5(c).
[2]. Civil Practice Law and Rules §3133(a).