Claimant submits a notice of motion which seeks "to compel disclosure".
Claimant fails, however, to submit an affidavit or other supporting
documentation. Thereafter, defendant cross-moved to dismiss the second and third
causes of action of the claim, and for a protective order or vacatur of
On October 25, 2004, claimant filed this claim alleging negligence (first cause
of action), assault (second cause of action) and denial of medical treatment
(third cause of action). Specifically, he alleges that on at least 15 occasions
between May 30, 2003 and October 5, 2003, claimant requested protection from
guards at Clinton Correctional Facility due to retaliation for filing
administrative and judicial complaints. As a result, claimant alleges that he
was interviewed by the Inspector General on October 31, 2003, for an incident on
July 26, 2003. After his interview, claimant alleges that he returned to his
cell and was subject to mistreatment, including physical assault by correction
officers. Claimant alleges that he served a notice of intention on December 17,
2003 and, thereafter, filed his claim in October 2004. Subsequently, claimant
served three sets of interrogatories, prompting the motion and cross-motion.
With respect to claimant's motion to compel, the Court denies this motion as
claimant fails to support his request for relief with a supporting affidavit or
other documentary submissions (CPLR 2214). In so doing, the Court notes that
discovery is a process that is generally conducted between the litigants. The
Court's intervention in this process is warranted only after attempts between
the parties to resolve an issue have failed. At that juncture, claimant may move
the Court to compel responses by serving a notice of motion and supporting
documentation, including a supporting affidavit (CPLR 2214).
Turning to defendant's cross-motion, defendant seeks dismissal of the second
and third causes of action and a protective order from interrogatories.
Defendant argues that the only allegations contained in the notice of intention
relate to the October 31, 2003 incident and, thus, the other allegations are
untimely. Inasmuch as the notice of intention has not been provided to the
Court, defendant has not established that it is entitled to dismissal.
With respect to the protective order, defendant argues that claimant served the
same set of interrogatories on June 16, 2005, August 18, 2005 and September 1,
2005. Defendant further argues that vacatur is appropriate because the demands
are palpably improper and/or privileged material.
Given that claimant consents to the withdrawal of the interrogatories served on
June 16, 2005 and August 18, 2005, the Court reviews only those interrogatories
served on September 1, 2005. In this regard, it is well settled that a trial
court has "broad discretionary power in controlling discovery" (Geary v
Hunton & Williams, 245 AD2d 936, 938 [3d Dept 1997]). Inasmuch as
defendant failed to object to the interrogatories within the 20-day period
specified in CPLR 3122(a), the Court's review is limited to determining whether
the requested material is privileged under CPLR 3101 or the demand is palpably
improper (see Saratoga Harness Racing Inc. v Roemer 274 AD2d 887,
888 [3d Dept 2000]). "A disclosure request is palpably improper if it seeks
information of a confidential and private nature that does not appear to be
relevant to the issues in the case" (Titleserv, Inc. v Zenobio, 210 AD2d
314, 315-316 [2d Dept 1994]).
Here, a review of the interrogatories reveals that while some of the
information requested is necessary to prosecute the action, a substantial
portion is overbroad, burdensome, duplicitous, and palpably improper in that it
seeks privileged or irrelevant material. Although under these circumstances, the
remedy is often not "judicial pruning but vacatur of the entire demand and
interrogatories" (Editel, New York v Liberty Studios, Inc
., 162 AD2d 345,
346 [1st Dept 1990]), the Court does not strike the entire demand in the
interests of judicial economy and to facilitate discovery. Rather, the Court
confines claimant's request and interprets it to encompass the following: his
institutional file relating to this incident, the log book of the hospital and
claimant's cell block for the relevant times, misbehavior reports, unusual
incident reports and Inspector General reports generated as a result of the
incident, reports relating to any disciplinary action against the correction
officers arising from this incident and videotapes and/or photographs of
injuries arising from the incident or injuries. Defendant is to provide these
materials to claimant within 30 days of the filing of this Decision and Order or
request in camera review of the objectionable
Claimant is advised to direct a
written request for his medical records to the inmate records coordinator at his
correctional facility, and a written request for his mental health records to
his facility's mental heath professional pursuant to the procedure outlined in
Mental Hygiene Law § 33.16.
As a final matter, the Court is confident that these materials will be
sufficient for claimant to proceed with his claim. Upon review of the materials
furnished by defendant, claimant is to notify the Court within 45 days if he is
not ready to proceed to trial.
Accordingly, claimant’s motion is denied. Defendant's cross-motion is
granted to the extent indicated and otherwise denied.