New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2007-030-518, Claim No. 111087, Motion No. M-72834


Synopsis


Inmate claimant’s motion to compel is granted to the extent that if there are photographs of him taken on the day of the alleged use of excessive force during handcuffing by correction officers then defendant is directed to produce copies of same immediately upon receipt of the file stamped copy of this Decision and Order. If no photographs are available, then defendant is directed to so indicate in writing. Service of motion on wrong regional office sufficient under these circumstances

Case Information

UID:
2007-030-518
Claimant(s):
TIQUAN DAVIS a/k/a TERRELL J. DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111087
Motion number(s):
M-72834
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
TIQUAN DAVIS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 9, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Claimant’s motion to compel


disclosure brought pursuant to Civil Practice Law and Rules §3124:

1,2 Notice to compel discovery by Tiquan Davis, Claimant; Affidavit of Service

  1. Letter from Assistant Attorney General dated February 2, 2007
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. See 22 NYCRR §206.5(c).[1] The Court 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 Claims.

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.


March 9, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. “[A]ll other papers required to be served upon a party shall be filed with the clerk either before service or within a reasonable time thereafter . . .”