New York State Court of Claims

New York State Court of Claims

GRIFFITH v. THE STATE OF NEW YORK, #2007-015-173, Claim No. 110936, Motion No. M-72837


Claimant's motion to compel discovery was granted where the defendant's objections were late and insufficiently specific and the documents sought were relevant.

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):
Cross-motion number(s):

Claimant’s attorney:
Joseph Griffith, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 4, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order compelling the defendant to respond to his notice for discovery and inspection dated August 3, 2006. Defendant's only response to this motion was a letter in which it was requested that the motion be removed from the Court's calendar because its response to the demands was served on the morning that the motion was received. As noted by the claimant in his reply, however, defendant's response contained several objections to the discovery demanded and some of the documents provided were redacted. This claim arises out of an inmate-on-inmate assault at Great Meadow Correctional Facility on March 26, 2005. The assault allegedly occurred when the claimant was slashed on the left side of his face by another inmate in the "E-block tunnel" while returning from the recreation yard. Claimant alleges that the defendant was negligent in its supervision of inmates in the area where the incident occurred. The claim alleges the following with regard to the negligence of the defendant:
E-block tunnel is the passage way where inmates walk through to return to galleries 1 through 8 in E-block. When an official leave their post, in which this was the case a risk is foreseeable, disciplinary violent inmates are encouraged to assault inmates when the security such as Great Meadows Correctional Facility callously fails to abide by their own security procedures (see claim, ¶ 6).

The following are the claimant's discovery demands and the defendant's responses to which the claimant seeks to compel a response[1]:
  1. DEMAND: Officer P. Smith time card of March 26, 2005.
RESPONSE: Defendant objects to this demand, regarding the time card of March 26, 2005 of Officer P. Smith, as privileged.
  1. DEMAND: Chart Sergeant/Duty and Assignment Sheet specifically 7:00 to 3:00 p.m. and 3:00 to 11:00 p.m., dated March 26, 2005.
RESPONSE: Attached as Exhibit A are copies of the New York State Department of Correctional Services Staff planning grid, with redactions, for the day and evening of March 26, 2005. In addition, also attached as Exhibit A is a copy of Great Meadow Correctional Facility Supervisor Chart, with redactions, for Saturday, March 26, 2005.
  1. DEMAND: All memorandums on policy and procedure during yard runs and go-back.
RESPONSE: Attached as Exhibit B is a copy of an interdepartmental communication from Great Meadow Correctional Facility, dated October 4, 2004, regarding Big Yard/Program Yard Eligibility, from Capt. S. Rowe to All Concerned Staff/Inmate Population. In addition, attached as Exhibit B is a copy of an interdepartmental communication from Great Meadow Correctional Facility, dated July 2, 2003, regarding Yard Schedule, from P. Vanguilder, DSS to All Concerned.
  1. DEMAND: A copy of all incident reports of inmates being stabbed/and assaulted in E-block tunnel within the last 5 years.
RESPONSE: Defendant objects to this demand as overly broad and unduly burdensome. It seeks documents neither relevant to the subject matter involved in this litigation nor reasonably calculated to lead to discovery of admissible evidence.
* * *
  1. DEMAND: Officer P. Smith job and assignment sheet.
RESPONSE: Defendant objects to this demand, regarding the job and assignment sheet of March 26, 2005 of Officer P. Smith, as privileged and not to be viewed by claimant for security purposes.

CPLR 3122 requires that a party who objects to disclosure state with "reasonable particularity" the reasons for each objection within twenty days of service of a notice of discovery. The defendant's objections to claimant's notice of discovery were raised for the first time in its response, which was served five months after the service of the claimant's notice. "The defendants' failure to challenge the [claimant's] notice of discovery within the time prescribed foreclosed inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper" (Fausto v City of New York, 17 AD3d 520, 522 [2005]; see also, Coville v Ryder Truck Rental, Inc., 30 AD3d 744 [2006]; McMahon v Aviette Agency, Inc., 301 AD2d 820 [2003]). The adequacy of the defendant's response to the claimant's notice of discovery will therefore be gauged by this standard.

CPLR 3101 provides for the disclosure of all items "material and necessary in the prosecution or defense of an action". The Court of Appeals has interpreted these words liberally to require the disclosure "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406). Exceptions to the policy of liberal disclosure include the disclosure of statutorily privileged material (e.g. CPLR 4501-4508) or material which is privileged under the common law (Wilson v State of New York, 36 AD2d 559 [1971]). " 'In light of the strong policy in favor of full disclosure unless the information sought is immunized, the burden of showing the appropriate immunity should be on the party asserting it' " (id. at 560 [citation omitted]).

The public interest privilege is a common law creation applied to immunize the disclosure of "confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged" (Cirale v 80 Pine Street Corp., 35 NY2d 113, 118 [1974]; see also Lowrance v State of New York, 185 AD2d 268 [1992]). The privilege is not absolute and whether it attaches in a particular case is a fact-specific determination requiring the Court to balance the interests of the party seeking the disclosure against the governmental-public interest at stake should the sought-after materials lose their shield of confidentiality (Matter of World Trade Center Bombing Litigation v Port Authority of New York and New Jersey, 93 NY2d 1, 8-10 [1999]). Entitlement to the privilege requires that "an agency claiming some special governmental-public interest 'cone of silence' demonstrate the specific public interest that would be jeopardized by an otherwise customary exchange of information (id. at 8, quoting Cirale v 80 Pine Street Corp., supra, 35 NY2d at 119; see also Parker v State of New York, 269 AD2d 255 [2000]). Applying this standard, it has been held that directives of the Department of Correctional Services and reports developed by the Inspector General's Office may be privileged where they relate to the fundamental mission of the security of the prison (Turner v State of New York, Ct Cl, February 27, 2007 [Claim No. 108423, Motion No. M-72434, UID # 2007-039-008] Ferreira, J. unreported[2]; Shantelle S. v State of New York,11 Misc 3d 1088[A], 2006 N.Y. Slip Op 50768[U] [2006] ; Tyree v State of New York, Ct Cl, May 6, 2002 [Claim No. 101474, Motion No. M-63202, UID #2002-019-530] Lebous, J., unreported; Brown v State of New York, Ct Cl, November 5, 2001 [Claim No. 103284, Motion No. M-63858, UID #2001-015-200] Collins, J., unreported). In this case, however, the defendant makes only the conclusory assertion in responding to items "1" and "7" that some of the discovery sought is privileged and failed to make the requisite showing of the specific public interest that would be jeopardized by disclosure of the documents sought. Accordingly, defendant is required to provide a response to items numbered "1" and "7" set forth above.

Likewise, in response to the demand for "Chart Sergeant/Duty and Assignment Sheet" for March 26, 2005, item number "2" of the claimant's demand, the defendant is required to provide an unredacted response (see Parker v State of New York, supra).

With respect to demand number "3" set forth above, claimant is entitled to memoranda reflecting the policy and procedure "during yard runs and go-back". This disclosure appears particularly relevant to the issues in this case given the allegation that the defendant was negligent in failing to abide by its own procedures and thus allegedly provided the opportunity for the assault (see Verges v State of New York, Ct Cl, September 27, 2004 [Claim No. 107755, Motion No. M-68185, UID # 2004-009-59] Midey, J., unreported]). As noted by the claimant, the defendant's response appears incomplete. In addition, the response appears unresponsive to the claimant's demand. The defendant did not object to the demand but rather provided information regarding yard eligibility and schedules. To the extent that policies and procedures regarding "yard runs and go-back" exist they should be disclosed in the absence of any claim of privilege.

With respect to demand number "4" set forth above, the demand is neither palpably improper nor privileged. As a result, the claimant is entitled to disclosure of "all incident reports of inmates being stabbed /and assaulted in E-block tunnel within the last 5 years [sic]". Notably absent from the defendant's response to this discovery demand is the claim that any of these reports are immune from disclosure under either the common law privilege set forth above or the statutory privilege contained in CPLR 4504 (concerning confidential communications between a patient and staff physicians or nurses). The contention that this demand was "overly broad and unduly burdensome" fails in light of its belated assertion and the fact that the demand appears reasonably calculated to lead to the discovery of information bearing on the issues in this case.

For the foregoing reasons, the claimant's motion to compel is granted to the extent that the defendant is hereby ORDERED to provide a response to claimant's demands numbered "1" , "3", "4" and "7" and an unredacted response to demand "2" within thirty days of the date this order is filed.

April 4, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 26, 2006;
  1. Affidavit of Joseph Griffith sworn to December 29, 2006 with exhibit;
  2. Letter dated January 11, 2007 from Frederick H. McGown, III;
  3. Defendant's response to Claimant's Demand for Discovery and Inspection dated January 8, 2007 with exhibits;
  4. Letter from Joseph Griffith sworn to February 12, 2007.

[1]. From the Court's review of the papers submitted, it appears that the defendant adequately responded to demands numbered "5", " 6" and "8" of the claimant's notice of discovery and claimant makes no argument to the contrary.
[2]. Unreported decisions from the Court of Claims are available via the internet at