New York State Court of Claims

New York State Court of Claims

AQUINO v. THE STATE OF NEW YORK, #2006-032-022, Claim No. 109513, Motion Nos. M-70503, M-70948, M-71001, CM-70639


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-70503, M-70948, M-71001
Cross-motion number(s):
Claimant's attorney:
David Aquino, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Stephen J. Maher, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 20, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


By three separate motions, claimant moves this Court for an order pursuant to CPLR 3124 compelling further responses to interrogatories (M-70503); compelling production of a videotape depicting the alleged assault underlying his claim and imposing sanctions pursuant to CPLR 3126 for failing to provide exculpatory evidence (M-70948); and seeking sanctions for failing to provide the videotape (M-71001). Defendant opposes all relief and cross-moves for a protective order pursuant to CPLR 3122, preventing further responses to the interrogatories.

In June 2004, claimant filed this action alleging that while he was an inmate at Upstate Correctional Facility on March 17, 2004, he was verbally assaulted by two correction officers as he was escorted to the infirmary. He further alleges that the incident escalated when the officers took his cane, claimant fell to the ground and officers physically assaulted him. Claimant alleges that when the assault was over, he was thrown on a stretcher and returned to his cell.

In June 2005, claimant served defendant two sets of interrogatories concerning the actions of each correction officer, Correction Officer Howard and Sergeant McKinney. The interrogatories concerning Howard include: whether Howard had a history of being a racist (question 11), had ever been reprimanded for excessive force (question 12 ), instances when other inmates alleged assault by him or another escorting officer (question 13), whether Howard had ever been arrested (question 14), had other officers escorting claimant ever been arrested (questions 15 and 16) and whether the incident report was plagiarized (question 23). With respect to McKinney's interrogatories, claimant sought information redacted from a memorandum provided during discovery (question 22) and whether McKinney had a history of racism (question 25). In responding to the interrogatories, defendant objected to these questions, prompting claimant to move to compel further responses (M-70503).

In addition to the interrogatories, claimant also served a request for the production of documents, including any videotapes concerning the March 17, 2004 incident. In response to this demand, defendant provided a videotape. Claimant contends that this videotape does not depict the assault by correction officers; therefore, he seeks the videotape that depicts the assault with sanctions for defendant's failure to provide exculpatory evidence (M-70948; M-71001).

In support of its cross-motion for a protective order, defendant argues that claimant has the burden of establishing the propriety of the information requested, and the questions at issue seek information that is not relevant to claimant's action. Defendant states that the alleged incident occurred while claimant was awaiting medical treatment as a result of an altercation with another inmate. The videotape provided to claimant depicts the altercation with this inmate, and is the only relevant videotape in defendant's possession.

Initially, the Court has broad discretion in the control of the disclosure process, and the exercise of that discretion is guided by the test of "usefulness and reason" (see McMahon v Aviette Agency, Inc, 301 AD2d 820, 821 [3d Dept 2003]. In controlling this process, it is axiomatic that a party is not required to produce materials that do not exist (see General Elec. Co. v Macejka, 252 AD2d 700, 701 [3d Dept 1998], lv dismissed 92 NY2d 1012 [3d Dept 1998]). Defendant's counsel affirms that he has undertaken good faith efforts to obtain the videotape that claimant seeks. Although defendant provided claimant a videotape of claimant's altercation with the other inmate, defense counsel affirms that there is no other videotape depicting any other relevant incidents. Thus, given that defendant does not possess the information that claimant seeks, his requests for the videotape and sanctions, are denied. Further, in this civil action, defendant is under no requirement to provide claimant with "exculpatory information". As such, claimant's request for relief in this regard is likewise denied. Accordingly, M-70948 and

M-71001 are denied.

Finally, the Court addresses claimant's motion to compel further answers to certain interrogatories and defendant's request for a protective order. Defendant contends that claimant's requests are palpably improper and warrants a protective order (see Holy Spirit Ass'n for Unification of World Christianity v New York Property Ins. Underwriting Ass'n, 116 AD2d 787 [3d Dept 1986]). A request is palpably improper when it seeks information of a confidential and private nature that is not relevant to the issues in the case (see Saratoga Harness Racing v Roemer, 274 AD2d 887, 888 [3d Dept 2000]; Titleserv Inc. v Zenobio, 210 AD2d 314, 315-316 [2d Dept 1994]). The Court determines that questions 11, 13-16 and 25 are not relevant to claimant's action. Specifically, with respect to questions 11 and 25, claimant does not allege that he is a minority or that he was assaulted due to his minority status. Question 13 seeks information regarding the last time Howard, or other officer's present during the alleged assault, were accused of assault. The Court determines that information about unsubstantiated allegations, without more, are not properly discoverable. Questions 14-16 seek information concerning whether Howard or other officers have been arrested. Such information is not relevant and, therefore, not discoverable. Questions 22-23 provide insufficient information for the Court to determine relevancy to the pending claim. The Court reaches a different conclusion, however, with respect to question 12. Given that claimant's action alleges assault, i.e. excessive force, whether Howard had previously been reprimanded for such conduct is relevant to the pending claim. Thus, claimant is entitled to a further response with respect to this question.

Accordingly, claimant's motions M-70948 and M-71001 are denied; M-70503 is denied except as indicated, by providing a further response to question 12. Defendant's cross-motion CM-70639 for a protective order is granted, except as to question 12, and a response is required within 30 days of the filing of this Decision and Order.

March 20, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion (M-70503) filed August 1, 2005;

2. "Affirmation" of David Aquino sworn to July 25, 2005; unnumbered exhibits;

3. Notice of Cross-Motion (CM-70639) filed September 1, 2005;

4. Affirmation of Stephen J. Maher dated August 30, 2005; Exhibits A-D annexed;

5. "Notice of Cross Motion" filed September 9, 2005;

6. "Affirmation" of David Aquino sworn to September 6, 2005;

7. Notice of Motion (M-70948) filed November 16, 2005;

8. "Affirmation" of David Aquino sworn to October 24, 2005;

9. Notice of Motion (M-71001) filed December 2, 2005;

10. Affidavit of David Aquino sworn to November 29, 2005;

11. Affirmation of Stephen J. Maher dated December 8, 2005;

12. Affidavit of David Aquino sworn to December 22, 2005; unnumbered exhibits.