New York State Court of Claims

New York State Court of Claims

LARABY v. THE STATE OF NEW YORK, #2007-013-043, Claim No. 112701, Motion Nos. M-73673, CM-73838


Synopsis



Case Information

UID:
2007-013-043
Claimant(s):
EDWARD LARABY
Claimant short name:
LARABY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112701
Motion number(s):
M-73673
Cross-motion number(s):
CM-73838
Judge:
PHILIP J. PATTI
Claimant’s attorney:
EDWARD LARABY, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 6, 2007
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On October 17, 2007, the following papers were read on motion by Claimant for an order to compel certain discovery and on cross-motion by Defendant for a protective order:

Notice of Motion, Affidavit and Exhibits Annexed


Notice of Cross-Motion, Affidavit and Exhibits Annexed


Claimant’s Affidavit in Opposition to the Cross-Motion


Filed Papers: Amended Claim; Answer; Notices for Discovery and Inspection; Response and Supplemental Response to Notice of Discovery and Inspection

In this motion Claimant seeks to compel discovery and inspection, noting his service of a discovery notice and four “follow up good faith letters.” He acknowledges a partial discovery response, but alleges that the Defendant “remains recalcitrant on full discovery.” In response, by way of cross-motion, Defendant seeks a protective order.

The amended claim herein alleges the State’s negligence for: wrongful confinement; violations of due process rights; mental and emotional anguish; personal mistreatment and abuse; sexual assault, abuse and misconduct; discrimination; and violations of civil rights.” Claimant alleges that his claim accrued on July 29, 2006.

His affidavit alleges that his notice for inspection and discovery was served upon Defendant on November 14, 2006. He then recites having “properly served” a first notice to compel on January 8, 2007; a second notice to compel on February 14, 2007; a third notice to compel on February 26, 2007 and a fourth notice to compel on March 27, 2007. He asserts that the Defendant “refuses to respond to inquiries, refuses to discuss settlement, refuses to comply with [his] Notice for Discovery and Inspection....”

The Defendant avers that it filed and served a response to notice for discovery dated February 15, 2007, and a supplemental response dated March 20, 2007 (appended respectively to the cross-motion as Exhibits A and B). I note, as does the Defendant, that Claimant included a notice for discovery and inspection, dated June 19, 2007, the same date as his motion. For purposes of clarity, all references below will be to the notice for inspection and discovery served on November 14, 2006, to which Defendant has responded, rather than the notice appended to Claimant’s motion.

The demands made by Claimant are extensive and many have been responded to by Defendant. There are various responses which contend, inter alia, that the demands are over broad, voluminous, seek information protected by Civil Rights Law § 50(a), etc., and Defendant seeks a protective order therefor. In opposition thereto, Claimant essentially argues that he is entitled to everything he has demanded because the Defendant violated his constitutional rights, that many items are simply available with only a few clicks of the computer. He does not address any of the arguments regarding privacy, etc., other than to say it was the Defendant’s fault that he was allegedly wrongfully confined for five years, that public employees have no expectation of “secrecy”[1]; etc.

While not raised directly in this matter, it bears noting that the Court of Claims does not have jurisdiction over federal constitutional tort claims (Will v Michigan Dept. of State Police, 491 US 58; Monell v Department of Social Services of City of New York, 436 US 658; also see Haywood v Drown, NY3d , 2007 WL 4164492, NY Slip Op. 09308, Nov. 27, 2007). Moreover, to the extent that Claimant alleges a state constitutional tort, such only exists where a claimant has no common law or statutory remedy available to him (Brown v State of New York, 89 NY2d 172; Remley v State of New York, 174 Misc 2d 523). Since alternative remedies are seemingly available here, and subject to and without prejudice to such future motion practice as may be advised, I deny the motion to compel and grant the cross-motion as to any federal constitutional and implied state constitutional claims.

Claimant provides no support, basis or reason for his requests, inter alia, for the residence addresses, license numbers, social security numbers, etc. for various employees of the State. I find that providing the names of said individuals and their work addresses satisfies the requirements of the law, and Claimant has provided no basis for any additional information, including badge numbers. To that extent his motion to compel is denied and the cross-motion for a protective order is granted.

Addressing seriatim the demands contained in the notice for discovery and inspection filed on November 16, 2006, and the Defendant’s response filed on February 16, 2007 and supplemental response filed on March 21, 2007, for the time frame between July 29, 2001 and October 31, 2006, and Claimant’s arguments in opposition to the motion for a protective order, I make the following rulings as to:

Demand No. 1, with respect to Wende Correctional Facility (Wende) Superintendents:
(A) Defendant’s response is adequate and it is granted a protective order as to other sought-after information;

(B) Defendant’s response is adequate and it is granted a protective order as to any correspondence that might be attorney work product or subject to attorney client privilege, but not as to interoffice communications not so protected;

(C) Defendant’s response is adequate; Claimant has failed to provide any basis to overcome the confidentiality of that part of the hearing transcript of February 28, 2003 governed by 7 NYCRR §254.6(c)(3), and the Defendant is granted a protective order as to other sought-after information;

(D) Defendant’s response is adequate and it is granted a protective order as to other sought-after information;

(E) Defendant’s response is adequate and it is granted a protective order as to other sought-after information, specifically as to “sworn statements of any and all verbal conversations... to-from-about Claimant” during the indicated time frame;

(F) With respect to the information sought regarding Correction Officer Anthony Bator, the Defendant’s response is adequate, and a protective order is granted, albeit without prejudice to such proper application made pursuant to Civil Rights Law §50-a(2), on notice to the affected officer, for an in camera inspection (see, Ramos v the State of New York, Ct Cl, UID #2003-013-029, Claim No. 102013, Motion Nos. M-66661, M-67180 and M-67538, Nov. 19, 2003, Patti, J.)[2];

(G) Defendant’s response is adequate and it is granted a protective order as to the sought-after information, but see (F) above; and

Demand No. 2, with respect to Wende Deputy Superintendents for security:

(A) - (G)

Defendant’s responses are adequate and it is granted a protective order as to other sought-after information, as the individual has been identified and Claimant fails to demonstrate the need for a badge number;

(H) Defendant’s response is adequate and it is granted a protective order as to the sought-after information, but see No. 1 (F) above;

(I) Defendant’s response is adequate and it is granted a protective order as to other sought-after information; and

Demand No. 3
, with respect to Wende Deputy Superintendents of Administration:

(A) - (E)

Defendant’s responses are adequate and it is granted a protective order as to other sought-after information; and


Demand No. 4
, with respect to Wende Deputy Superintendents of Programs:

(A) - (E)

Defendant’s responses are adequate and it is granted a protective order as to other sought-after information;

(F) Defendant’s response is adequate and it is granted a protective order as to the sought-after information; and


Demand No. 5, with respect to Wende Deputy Superintendents of Medical Needs and Services:

(A) - (E)

Defendant’s responses are adequate and it is granted a protective order as to other sought-after information, except that it has not identified the names and dates of service of Wende Deputy Superintendents of Medical Needs and Services, and as to that demand, the motion is granted and the Defendant is directed to respond thereto within 30 days of service of a file-stamped copy of this order; and


Demand No. 6, with respect to Wende Correction Captains:


(A) - (E)

Defendant’s responses are adequate and it is granted a protective order as to other sought-after information; and


Demand No. 7 with respect to Wende Correction Lieutenants:


(A) - (E)

Defendant’s responses are adequate and it is granted a protective order as to other sought-after information; and


Demand No. 8, with respect to Wende Correction Sergeants:


(A) - (E)

Defendant’s responses are adequate and it is granted a protective order as to other sought-after information; and


Demand No. 9, with respect to Wende Correction Sergeants assigned to the Special Housing Unit (SHU):
(A) - (E)

Defendant’s responses are adequate, the demand is overly burdensome, and it is granted a protective order as to other sought-after information;


(E-2nd)
(i) Defendant’s responses are adequate, the demand is overly burdensome, and it is granted a protective order as to other sought-after information;

(ii) Defendant’s response is adequate and it is granted a protective order as to the sought-after information;

(iii) Defendant’s response is adequate and it is granted a protective order as to the sought-after information;

(iv) Defendant’s response is adequate and it is granted a protective order as to the sought-after information;


(v), (vi)
& (vii) Defendant’s responses are adequate and it is granted a protective order as to the sought-after information;

(viii) Defendant’s response is adequate and it is granted a protective order as to the sought-after information;


(vix
[sic]) Defendant’s response is adequate and it is granted a protective order as to the sought-after information;

(x) Defendant’s response is adequate and it is granted a protective order as to the sought-after information;

(xi) Defendant’s response is adequate and it is granted a protective order as to the sought-after information;

(xii) Defendant’s responses are adequate and it is granted a protective order as to the sought-after information;

(F) - (H) of Paragraph No. 1 - As to (F) and (G) , my ruling is the same as directed above; and since there is no (H) in Paragraph No.1, I decline to rule thereon; and


Demand No. 10, with respect to Wende Correction Officers assigned to SHU:

(A)- (D) of Paragraph No. 1 and (E) through (E)(xii) of Paragraph No. 9:

Defendant’s responses are adequate and it is granted a protective order as to the sought-after information; and


Demand No. 11, with respect to each civilian employee assigned as inmate grievance program supervisors:
(A) and (B)

the Defendant’s response is adequate; the requests are burdensome, over broad and seemingly have no relevance to the claim at bar, and since Claimant has not addressed the same, a protective order is granted with respect hereto;

(C) the requests are burdensome, over broad and seemingly have no relevance to the claim at bar, and since Claimant has not addressed the same, a protective order is granted with respect thereto;

(D)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii [a] to [g])

Defendant’s responses, that it would require the creation of documents not in existence, that the requests are over broad, irrelevant and/or palpably improper are adequate and it is granted a protective order as to the sought-after information;

(D)(viii [h])

Defendant’s responses are adequate and it is granted a protective order as to the sought-after information; and


Demand No. 12, with respect to Wende Correction Sergeants assigned as Grievance Sergeants:
(A) and (B)

the Defendant’s response is adequate; the requests are burdensome, over broad and seemingly have no relevance to the claim at bar, and since Claimant has not addressed the same, a protective order is granted with respect hereto;

(C) and (D) (i), (ii), (iii), (iv), (v), (vi), (vii), (viii [a] to [h])

the requests are burdensome, over broad and seemingly have no relevance to the claim at bar, are confusing, and since Claimant has not addressed the same except to argue that there were other complaints of improprieties by the Wende grievance department but failing to demonstrate that such might be relevant to his claim, a protective order is granted with respect thereto;

(E) with respect to the information sought regarding Correction Officer Anthony Bator, the Defendant’s response is adequate, and a protective order is granted, albeit without prejudice to such proper application made pursuant to Civil Rights Law §50-a(2), on notice to the affected officer, for an in camera inspection; and


Demand No. 13, with respect to each Wende inmate grievance resolution committee (IGRC) chairpersons, clerks, or representatives:
(A) and (B) (i) - Demand No. 11 (D through viii [h])

the Defendant’s response is adequate; the requests are burdensome, over broad and seemingly have no relevance to the claim at bar, invoke protections of Civil Service Law §50-a and would require the creation of documents that are not in existence, a protective order is granted with respect hereto; and


Demand No. 14, with respect to the identity of all SHU inmates during the period in question, the Defendant’s response, including security concerns, as well as objections that the requests are burdensome, over broad and seemingly have no relevance to the claim at bar, is adequate and a protective order is granted with respect thereto; Claimant’s assertions that he has narrowed the request to 17 cells on 37 company and that he needs to verify the numbers of inmates, the cells they were in, and their current location so he “can secure statements” fails to address any of the security concerns raised by Defendant; and

Demand No. 15, regarding all medical personnel employed at the Wende Regional Medical Unit for the indicated period:

(A) and (B)

the Defendant’s response that the request is over broad and burdensome, and the personal information sought would violate the privacy rights of said individuals is adequate and the Defendant is granted a protective order as to the sought-after information without prejudice to such future requests that might be limited to those medical personnel who treated him;

(C) Defendant’s response is adequate and it is granted a protective order as to any such additional documents as the request is burdensome, over broad and seemingly has no relevance to the claim at bar;

(D) Defendant’s response is adequate; the request is burdensome, over broad and seemingly has no relevance to the claim at bar, would require the creation of documents that are not in existence, and a protective order is granted with respect thereto; and


Demand No. 16, regarding all medical personnel employed at the Wende Mental Health Unit for the indicated period:

(A) and (B)

the Defendant’s response that the request is over broad and burdensome, of questionable relevance and the personal information sought would violate the privacy rights of said individuals is adequate and the Defendant is granted a protective order as to the sought-after information without prejudice to such future request that might be limited to those mental health unit personnel who treated him;

(C) Defendant’s response is adequate and it is granted a protective order as to any such additional documents as the request is burdensome, over broad and seemingly has no relevance to the claim at bar;

(D) Defendant’s response is adequate; the request is burdensome, over broad and seemingly has no relevance to the claim at bar, would require the creation of documents that are not in existence, and a protective order is granted with respect thereto; and


Demand No. 17, regarding all correction officers assigned to the Wende law library for the indicated period:

(A) and (B)

the Defendant’s response that the request is over broad and burdensome, of questionable relevance ( indeed, unless it was overlooked, the Amended Claim does not appear to raise any assertions of the denial of legal materials) and the personal information sought would violate the privacy rights of said individuals is adequate and the Defendant is granted a protective order as to the sought-after information;

(C) Defendant’s response is adequate and it is granted a protective order as to any such additional documents as the request is vague, burdensome, over broad and seemingly has no relevance to the claim at bar;


(D)(i)(ii)(iii)(iv)(v)(vi)(vii)(viii)
Defendant’s responses are adequate; the requests are burdensome, over broad and seemingly have no relevance to the claim at bar, would require the creation of documents that are not in existence, or are not proper requests for a Notice of Inspection and a protective order is granted with respect thereto; and


Demand No. 18, regarding all workers assigned to the Wende law library for the indicated period:

(A) the Defendant’s response that the request is over broad and burdensome, of questionable relevance, as noted above, is adequate and the Defendant is granted a protective order as to the sought-after information;

(B) including all requests in Demand No. 17 (D)(i)(ii)(iii)(iv)(v)(vi)(vii)(viii)

Defendant’s response is adequate; the requests are burdensome, over broad and seemingly have no relevance to the claim at bar, would require the creation of documents that are not in existence, or are not proper requests for a Notice of Inspection and a protective order is granted with respect thereto; and


Demand No. 19, regarding all Wende inmate correspondence department employees for the indicated period:

(A) and (B)

the Defendant’s response that the request is over broad and burdensome, and of questionable relevance and/or vague is adequate and the Defendant is granted a protective order as to the sought-after information;


(C) and (D)(i) and (ii)

Defendant’s responses that the requests are burdensome and over broad are adequate, at this time, and a protective order is granted with respect thereto, albeit without prejudice to a more specific inquiry narrowing the period of time for which redacted log books reflecting such incoming and outgoing legal mail pertaining to Claimant; and


Demand No. 20, regarding all SHU log books for the indicated period, names and dates of all shift officers and supervisors, all visitors, all rounds made by medical and mental health personnel, all hearing officers, all unusual incident entries, all use of force entries, and the names of all inmates released from SHU:
the Defendant’s responses that such disclosure would violate the privacy of other inmates housed in SHU, violate security, and is burdensome is adequate, and the Defendant is granted a protective order with respect thereto; and


Demand No. 21 - Defendant’s response is adequate;


Demand No 22, regarding the identification of Inmate Record Coordinators during the indicated period:
(A) - (D)

Defendant objects on the basis that the request is burdensome in nature, over broad, and irrelevant, and Claimant does not address the relevance; accordingly a protective order with respect thereto is granted;

(E)(i) Defendant’s response is adequate; the request is burdensome, over broad and vague and would require the creation of documents that are not in existence, and a protective order is granted with respect thereto;

(E)(ii[a] & [b])

regarding all written legal actions commenced against Wende by Claimant, including petitions, orders, decisions, etc., and an alleged letter of waiver dated March 2, 2003 and related documents, the Defendant’s responses are adequate; and


Demand No. 23, regarding all Wende inmate accounts civilian employees:


(A) and (B)

the Defendant’s response that the request is over broad and burdensome, is adequate and the Defendant is granted a protective order as to the sought-after information;


(C) and (D)(i) and (ii)

seeking all written complaints or written requests, to-from-about Claimant, and all monies disbursed or received, or disbursement forms, refunds, checks and money orders pertaining to Claimant for the indicated period, Defendant’s responses that the requests are vague, burdensome, over broad and/or irrelevant are adequate, at this time, and a protective order is granted with respect thereto, albeit without prejudice to a more specific inquiry narrowing the period of time or further specifying the documents sought; and


Demand No. 24, regarding all Wende inmate package room correction officers and supervisors for the indicated period:

(A) and (B)

the Defendant’s response that the request is over broad and burdensome, is adequate and the Defendant is granted a protective order as to the sought-after information;

(C) and (D) (i), (ii), (iii), (iv), (v), (vi)

seeking all written complaints or written requests, to-from-about Claimant, and all monies disbursed or received, or disbursement forms, refunds, checks and money orders pertaining to Claimant for the indicated period, information relative to the alleged destruction of Claimant’s package room folder, for the unlawful destruction of DOCS documents, for the names of those who conspired to tamper with or destroy DOCS documents, Defendant’s responses that the requests are vague, burdensome and over broad, or not the subject of proper requests for a Notice of Inspection are adequate, at this time, and a protective order is granted with respect thereto, albeit without prejudice to a more specific inquiry narrowing the period of time or further specifying the documents sought; and


Demand No. 25:

(A) - (D)

relating to the identity of Defendant’s attorney in two article 78 proceedings commenced by Claimant during the indicated period, the Defendant’s response is adequate;

(E) seeking sworn statements of any and all verbal conversations or meeting to-from-about Claimant and the complete unredacted files of those proceedings including any correspondence, the Defendant’s response is adequate, having provided copies of the files, but without any correspondence or records that are privileged as attorney work product, subject to attorney-client privilege, or pursuant to 7 NYCRR 254.6(c)(3); and


Demand No. 26, seeking the names and addresses of all witnesses for the trial, the Defendant’s response is adequate and it will provide such information as the litigation proceeds; and

Demand No. 27, for certain statements pursuant to CPLR 3101(e):
the Defendant’s response that it is inapplicable is adequate, and a protective order is granted; and


Demand No. 28, for certain statements pursuant to CPLR 3101(e) primarily directed to medical and mental health employees and correction staff:
the Defendant’s initial response that it had not yet received Claimant’s medical records is adequate, and the response that it had not yet received an authorization for Claimant’s mental health records is also adequate; Defendant’s argument that it is entitled to reasonable duplication fees is well taken (see Drew v the State of New York, Ct Cl, UID #2004-013-014, Claim No. 107733, Motion Nos. M-66890, M-67487, M-67820, Feb. 26, 2004, Patti, J.), although Claimant might wish to inspect those documents and select those for which he would pay copying costs, but at this time a protective order is granted; and


Demand No. 29, relating to the provisions of photographs, videotapes, etc. pursuant to CPLR 3101(i), the Defendant’s response is adequate and a protective order is granted; and

Demand No. 30, regarding copies of Claimant’s medical and mental health records, see the discussion with respect to Demand No. 28 infra; and

Demand No. 31, relating to accident, incident and investigative reports, the Defendant’s response is adequate; and

Demand No. 32, relating to CPLR 3101(d) expert witness disclosure, the Defendant’s response is adequate; and

Demand No. 33, relating to written reports, memoranda, communications, etc. from an involuntary protective custody hearing on May 13, 2001 and a May 9, 2001 incident, Defendant’s response is adequate.

Accordingly, upon the foregoing papers, the motion to compel is denied and the cross-motion for a protective order is granted, except to the extent specified above.

December 6, 2007
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1] I presume that Claimant has intentionally misused this term, rather than privacy.
  2. [2]Decisions and selected orders of the New York State Court of Claims are available on the Internet at www.nyscourtofclaims.state.ny.us.