New York State Court of Claims

New York State Court of Claims

GRIFFITH v. THE STATE OF NEW YORK, #2007-015-233, Claim No. 110936, Motion No. M-73668


Motion to renew prior motion compelling discovery and for a protective order was granted only with respect to documents which involved confidential security matters of the prison or would reveal privileged medical information of other inmates

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:
September 4, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for leave to renew and for a protective order relating to the claimant's prior motion to compel a response to his notice for discovery and inspection dated August 3, 2006. Claimant, an inmate, brings this claim pro se for injuries sustained in an inmate-on-inmate assault. The assault allegedly occurred when the claimant was slashed in the face in the "E-block tunnel" while returning from the recreation yard at Great Meadow Correctional Facility on March 26, 2005. Claimant alleges that the defendant was negligent in the supervision of inmates in the area where the incident occurred.

By order dated April 4, 2007, the Court required the defendant to provide a response to claimant's demands numbered "1", "3", "4" and "7" and an unredacted response to demand "2" of the claimant's notice for discovery and inspection dated August 3, 2006. The defendant has provided a partial response to these demands, but now raises the objection that certain of the documents demanded in claimant's demands numbered "3", "4" and "7" are privileged. The defendant has provided the Court the documents it deems privileged (annexed to the defendant's response as Exhibits "D", "E" and "G") for its in camera inspection.

The defendant's motion to renew is based on the contention that "new facts have been learned which require the state to reassert it (sic) privilege to hold confidential matters relating to the security of a correctional facility". In addition, with respect to claimant's demand number "4", defendant asserts that the production of the documents demanded would require the disclosure of confidential medical records of both inmates and staff.

Defendant's prior response to the claimant's motion to compel discovery consisted of a letter in which it advised the Court that its response to claimant's discovery demands had been provided and requested that the motion be removed from the calendar. In fact, defendant's response to claimant's discovery demands appeared incomplete and contained certain objections which were not asserted until five months after the claimant's discovery demands were served. The claimant's discovery demands and the defendant's initial responses are as follows:
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.
2. 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.

3. 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 interdepartmentental communication from Great Meadow Correctional Facility, dated July 2, 2003, regarding Yard Schedule, from P. Vanguilder, DSS to All Concerned.

4. 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.

* * *

7. 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.

It is well settled that " 'a motion to renew must be based upon newly discovered evidence

which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted' " (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]; quoting Wahl v Grippen, 305 AD2d 707, 707 [2003]; see also CPLR 2221[e]). "Because renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, a party seeking that relief must provide a reasonable justification for the earlier failure to present such facts" (Cippitelli v County of Schenectady, 307 AD2d 658, 658 [2003][internal quotation marks and citation omitted]). In support of this motion, the defendant has provided no justifiable excuse for its failure to timely object to the materials it now deems privileged. The fact that the defendant failed to timely compile the documents responsive to the claimant's request and determine the necessity for invoking the claim of privilege certainly provides no basis for a motion to renew.

Notwithstanding this failure, inquiry into the propriety of the information sought is not foreclosed with regard to requests that are privileged or palpably improper (Fausto v City of New York, 17 AD3d 520, 522 [2005]; Coville v Ryder Truck Rental, Inc., 30 AD3d 744 [2006]). Accordingly, the Court has reviewed the documents annexed as Exhibit "D", which were provided in response to claimant's demand number "3". Although no objection was previously raised with respect to the production of memoranda on policy and procedure during yard runs and go-back, the defendant now objects to the production of these documents on the ground they "effect the security of the inmate and employee population of a correctional facility and are patently privileged" (see defendant's Second Response To Claimant's Demand For Discovery And Inspection, Response no. "3") .

The public interest privilege is a common law creation applied to immunize the disclosure of official information where the public interest requires that such communications not be divulged (Cirale v 80 Pine St. Corp., 35 NY2d 113 [1974]; Lowrance v State of New York, 185 AD2d 268 [1992]). The privilege is not absolute and the determination of 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 Ctr. Bombing Litig., 93 NY2d 1, 8-10 [1999]; Matter of Labarbera v Ulster County Socy, for Prevention of Cruelty to Animals, 277 AD2d 672, 673 [2000]). 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]). In light of the strong policy in favor of full disclosure, the burden of showing the immunity is on the party invoking the privilege (Labarbera v Ulster County Socy. for Prevention of Cruelty to Animals, 277 AD2d at 673; Wilson v State of New York, 36 AD2d 559 [1971]). In the prison setting, such a showing has been satisfied when the material sought implicates legitimate security concerns (Shantelle S. v State of New York,11 Misc 3d 1088[A][2006], 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[1] ).

The Court has reviewed the defendant's second response to claimant's request for memoranda on policy and procedure during yard runs and go-back (claimant's demand numbered "3") and finds that the probative value to the claimant outweighs any purported harmful effects disclosure would work on the fundamental security mission of the prison. The documents include memoranda on frisking procedures for inmates going to the recreation yard, yard closing times, items allowed during yard recreation, various recreation schedules, and staffing requirements for the recreation yard. As stated in the Court's prior order, these documents appear particularly relevant to the issues in this case given the allegation that the defendant was negligent in failing to abide by its own procedures thereby providing the opportunity for the alleged 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]). On the other hand, disclosure of the requested materials will reveal no information not already known to the inmate population. For example, the fact that inmates are required to be frisked prior to entering the recreation yard is undoubtedly well known by inmates going to the yard. Closing times and schedules are similarly well known to those inmates attending the recreation yard. In the Court's view, none of the documents contained in Exhibit "D" involve confidential security matters (cf, 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). The defendant is therefore directed to provide the claimant with those documents which are annexed as Exhibit "D" to its response to discovery.

Defendant's Exhibit "E" relates to claimant's demand number "4", which requested a copy of all incident reports concerning inmates stabbed in the E-block tunnel within the last five years. Also included in Exhibit "E" is an affidavit from Andrew Zavistaski, the Corrections Administration Lieutenant at Great Meadow Correctional Facility. Mr. Zavistaski states that these documents contain confidential medical information of other inmates which should not be disclosed. In addition, for the safety and security of the prison, Mr. Zavistaski recommends that the circumstances surrounding the other incidents as well as the identities of the inmates and staff involved in the investigations not be disclosed.

The Court agrees that disclosure of this information may jeopardize the security of inmates and staff and violate the physician patient privilege of the other inmates involved. The Court directs that only those reports relating to the incident giving rise to the instant claim and the medical treatment provided the claimant as a result thereof be disclosed unredacted. The reports entitled "Unusual Incident Reports" relating stabbings of other inmates in the E-block tunnel may be redacted to protect the identity of the inmates and staff involved and, as so redacted, the reports must be disclosed. The records relating to these other incidents, which were attached to the Unusual Incident Reports, including medical records, use of force reports and interdepartmental communications need not be disclosed.

The Court finds that defendant's response to claimant's demand # 7 is of little or no relevance to the issues in this case and may contain sensitive security information affecting the fundamental mission of the security of the prison. The Court holds therefore that this material is privileged and, as such, shielded from disclosure. In addition, the Court finds that the demand is overbroad in that it is not limited to the date of the incident at issue.
Based on the foregoing, the Court grants the defendant's motion to renew and for a protective order only to the extent that it may redact the identities of the inmates and staff on the documents entitled "Unusual Incident Report" annexed as Exhibit "E" to the defendant's discovery response and need not provide the medical records or correspondence attached to those reports and it need not respond to claimant's demand numbered "7". The defendant is directed to provide those documents annexed as Exhibit "D" in response to the claimant's demand number "3".

September 4, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 14, 2007;
  2. Affirmation of Frederick H. McGown, III dated June 14, 2007 with exhibits.

[1]. Unreported decisions from the Court of Claims are available via the internet at http//