4-7 Filed papers: Claim, Answer; Response (by Defendant) to Discovery Demands
with attachments; Response (by Defendant) to Notice to Admit
Tiquan Davis alleges in his claim that Defendant’s agents at Downstate
Correctional Facility assaulted him when placing him in handcuffs on February
28, 2005, causing him injury. In its Answer, in addition to general denials,
the State raises the defense of claimant’s own alleged culpable conduct,
or the conduct of others for whom the Defendant is not responsible, causing or
contributing to his damages.
The present motion asks for an Order compelling production of photographs of
Claimant’s injuries, that he asserts were taken at the time of the
incident. He states: “The sgt in his To From letter indicated that
photo’s of claimant’s injury” were taken, and that he has
requested the photographs in prior discovery. [Notice to Compel discovery].
In a letter to the Court dated February 2, 2007, the Assistant Attorney General
indicates that although the letter from this Court’s motion unit
scheduling the present motion was received, his office was not served with a
copy of the motion papers thus he makes no response. Counsel does not indicate
that he checked with other regional offices or the central office to determine
if papers were received there.
Claimant’s Affidavit of Service indicates he served the papers on the
Attorney General’s regional office in White Plains, rather than the
Poughkeepsie regional office where the assigned Assistant Attorney General has
his office. Certainly, according to the Answer and other papers previously
served upon Claimant by the Attorney General, it is the Poughkeepsie regional
office of the Attorney General that responded to Claimant’s demands, and
where any motion would properly be served. See generally Civil Practice
Law and Rules §§2103(b); 2214.
However, because the Attorney General’s office was served, albeit at the
wrong office, in the interest of moving matters forward the Court will address
the application more substantively, with the caveat that the Court is prevented
from completely assessing the substantive aspects of Claimant’s motion
because no discovery demands have been filed with the Clerk’s office as
required, nor are any copies of same appended to Claimant’s motion.
22 NYCRR §206.5(c).
does not know whether the Response to Discovery Demands made by the Defendant is
adequately responsive to Claimant’s demands because he did not file copies
of whatever demands he made in the Office of the Chief Clerk of the Court of
A voluminous set of copies of Claimant’s ambulatory health records and
related medical records, log entries, grievance papers and internal memoranda
from the facility were attached to the filed copy of the Defendant’s
Response to Discovery Demands, and has been reviewed by the court. In the
series of memoranda produced that are related to investigation of the incident
of February 28, 2005, there is a memorandum dated that same day from Sgt.
McKenna to Lt. Burnett indicating that photographs were taken of “the
inmate’s reported injuries.” This would seem to be the
“to/from” claimant refers to in his motion.
Accordingly, Claimant’s motion is granted to the extent that if indeed
there are photographs of the claimant taken on the day of this incident then
Defendant is directed to produce copies of same immediately upon receipt of the
filed stamped copy of this Decision and Order. If no photographs are available,
then Defendant is directed to so indicate in writing.