New York State Court of Claims

New York State Court of Claims

BRANHAM v. THE STATE OF NEW YORK, #2007-010-001, Claim No. 107649, Motion No. M-72045


Synopsis


Claimant is granted an adverse inference for records destroyed by defendant, however, there was an insufficient basis to grant claimant’s application to strike defendant’s answer.

Case Information

UID:
2007-010-001
Claimant(s):
TODD BRANHAM
Claimant short name:
BRANHAM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107649
Motion number(s):
M-72045
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
ROBERT W. NISHMAN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant’s motion seeking, inter alia, an order striking defendant’s answer due to its failure to provide claimant with certain items sought in discovery:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits......................1

Attorney’s Affirmation in Opposition and Exhibits................................................2

Reply Affirmation....................................................................................................3

This claim arises out of a fall that occurred on December 26, 2002 when claimant, an inmate, slipped on water located on the basketball court of the gymnasium floor at Sing Sing Correctional Facility. A claim was served and filed within the statutorily mandated time period (Claimant’s Ex. 1). The claim alleged that the water came from defendant’s leaking ceiling and that defendant was negligent in its failure to address the condition. In addition to its discovery demands for documents, claimant’s attorney served defendant with A Demand to Preserve Essential Records specifically identifying, inter alia, the daily, weekly, and monthly reports (Forms 2095, 2097, 2098) of facility inspections (Claimant’s Ex. 9). The Court has reviewed claimant’s demands and defendant’s responses and has considered claimant’s application for sanctions with respect to defendant’s failure to provide claimant with certain documents.

Defendant has failed to provide any explanation for its failure to produce the Monthly Inspection of Facility Reports (Form 2098) other than its explanation that a diligent search has been conducted and the documents were not found (Defendant’s Ex. C). Notably, defendant’s own directives mandate that these reports be made and retained for three years and the instant claim was commenced well within that time period, thereby providing defendant with notice that such documents may be relevant at a future trial on the merits. Under the circumstances, the Court finds that claimant has made a sufficient showing to warrant an adverse inference that, had the records sought (Form 2098) been produced, they would have been unfavorable to defendant (see Ifraimov v Phoenix Indus. Gas, 4 AD3d 332). Accordingly, that branch of claimant’s motion is GRANTED.

However, with respect to claimant’s remaining contentions, the Court finds that there is an insufficient basis to grant claimant’s application. Notably, there has been no showing that the records sought were destroyed willfully or in bad faith and therefore there is no basis for striking defendant’s answer (see Calle v Robert Champeau, Inc., 16 AD3d 535). Accordingly, the remaining branch of claimant’s motion is DENIED.

January 8, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims