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 ; see also, Coville v Ryder Truck Rental, Inc., 30
AD3d 744 ; McMahon v Aviette Agency, Inc., 301 AD2d 820 ).
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 ). " '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 ; see
also Lowrance v State of New York
, 185 AD2d 268 ). 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 ). 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
, 35 NY2d at
119; see also Parker v State of New York
, 269 AD2d 255 ).
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.
; Shantelle S. v State of New
,11 Misc 3d 1088[A], 2006 N.Y. Slip Op 50768[U]  ; 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
, 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.