New York State Court of Claims

New York State Court of Claims

MEDINA v. STATE OF NEW YORK, #2007-039-009, Claim No. 109178, Motion No. M-72619


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:
Anthony Medina, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael C. RizzoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant alleges that, while an inmate at Clinton Correctional Facility, prison officials turned off the electricity in his cell for a period of nine consecutive days, failed to provide him with legal supplies and law books, and confiscated certain items of personal property in retaliation for a confrontation between claimant and a correction officer and for grievances filed by claimant against the prison law library. Issue was joined and discovery ensued. The record before the Court reveals that claimant made a demand for disclosure dated September 9, 2004, and that defendant provided a response dated December 2, 2004. Claimant now seeks an order from the Court compelling defendant to respond to portions of his subsequent demand dated April 27, 2006. More specifically, claimant seeks relief from the Court with respect to the following questions and corresponding responses:
Question Two: Does there exist a written memo or policy for NYSDOCS or each of DOCS facilities, which prohibits DOCS employees from turning off the cell electricity? If yes, attach to the answer such memo or policy.

Response: No such record exists.

Question Three: Have any inmates at the Clinton Correctional Facility filed any grievance against a DOCS employee for cutting off their cell electricity/lights, between the period of two years before the instant claim was filed and two years after? If yes, attach to the answer a copy of such grievance(s) and the disposition(s). (Claimant has no objection to the name and DOCS number of the inmate being redacted).

Response: The defendant objects to this demand as being over broad, unduly burdensome and irrelevant. The database system at Clinton Correctional Facility is not designed to be able to access the information in a manner necessary to respond to this request. The thousands of grievances that have been filed are not segregated by the nature of the grievance but rather are filed under the individual inmate’s name.

Question Four: Does each housing block at Clinton Correctional Facility have designated keys to access the “catwalks”? If yes, provide the key ring number that accesses D-Block’s, 6 company catwalk.

Response: Each housing block does have designated keys to access the catwalks. The defendant objects to the production of the key ring number for D-Block’s 6th company catwalk as the release of the requested information would create a threat to security at the facility.

Question Five: Provide the names and DOCS numbers of the inmates that were housed at Clinton’s D-Block, 6 company, 6 cell and 7 cell from the period of 9/9/02 to 9/17/02. The two inmates are relevant for claimant will call them as witnesses.

Response: The defendant is unaware of the individuals who were housed at that location at that time.

Civil Practice Law and Rules 3101 (a) provides that “ [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” It is well settled that trial courts “possess a wide discretion to decide whether information sought is ‘material and necessary’ to the prosecution or defense of an action” (Allen v Crowell-Collier Publishing Company, 21 NY2d 403, 406 [1968]; see also American Association of Bioanalysts v New York State Department of Health, 12 AD3d 868, 869 [2004]).
“The words, ‘material and necessary’, are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v Crowell-Collier Publishing Company, supra at 406).

Trial courts must balance the “competing interests concerning the need for such discovery . . . ‘against any special burden to be borne by the opposing party’ ” (American Association of Bioanalysts v New York State Department of Health, supra at 869, citing Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998] [citations omitted]).

Initially, the Court notes that claimant characterizes his requests as interrogatories but, upon closer inspection, the Court finds that the foregoing inquires are in the nature of a demand for discovery and inspection (see CPLR 3120), and a party may not use the disclosure mechanism of discovery and inspection in order to conduct a fishing expedition (see Samide v Roman Catholic Diocese of Brooklyn, 5 AD3d 463, 465 [2004]; MacKinnon v MacKinnon, 245 AD2d 690, 691 [1997]; Fascaldi v Fascaldi, 209 AD2d 578, 579 [1994]). Normally, the “ ‘proper procedure requires that the party seeking discovery and inspection pursuant to CPLR 3120 initially make use of the deposition and related procedures provided by the CPLR to ascertain the existence of such documents in order that they may be designated with specificity in a CPLR 3120 notice’ ” (Fascaldi v Fascaldi, supra at 579, quoting Haroian v Nusbaum, 84 AD2d 532, 533 [1981]). However, “a deposition of the adverse party is not automatically required prior to service of a notice for discovery and inspection” (Village of Mamaroneck v State of New York, 16 AD3d 674, 675 [2005]). With these principles in mind, the Court will address the propriety of defendant’s foregoing responses.

The Court finds in the first instance that defendant did not provide a satisfactory response to question two. Certainly, when a party seeks the disclosure of documents that are nonexistent, “it is axiomatic that a party may not be compelled to create documents in order to comply with discovery demands” (Matter of General Electric Co. v Macejka, 252 AD2d 700, 701 [1998]; see also Orzech v Smith, 12 AD3d 1150, 1151 [2004]). However, here, defendant did not provide the Court with adequate proof in opposition to the motion to substantiate its response that a New York State Department of Correctional Facility’s policy prohibiting DOCS employees from turning off the electricity in inmate cells does not exist. “An attorney’s affirmation that is not based upon personal knowledge is of no probative or evidentiary significance” (Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; see Bova v Vinciguerra, 139 AD2d 797, 798 [1988]). Although there may not be such a policy, the Court is unable to determine, based upon a review of counsel’s cursory affidavit offered in opposition to the motion, that counsel possesses the requisite personal knowledge regarding the existence of such a policy thereby enabling him to attest to such a fact. Nor did defendant offer the affidavit of an individual with such personal knowledge. Claimant’s request is sufficiently specific and, accordingly, the Court is not inclined to deny this aspect of claimant’s motion. Rather, defendant shall be required to serve upon claimant a copy of the policy or an affidavit from an individual with personal knowledge who can attest to the nonexistence of such a policy.

Contrary to the foregoing, the Court denies claimant’s motion with respect to questions three and four. Claimant’s request that defendant identify any inmates filing similar grievances over a period of four years is not only “overly burdensome” (MacKinnon v. MacKinnon, supra at 691), but constitutes an obvious fishing expedition (see Samide v Roman Catholic Diocese of Brooklyn, supra at 465; MacKinnon v MacKinnon, supra at 691; Fascaldi v Fascaldi, supra at 579). Additionally, when the Court considers the potential threat to prison security if the key ring number used to access D-Block’s 6 company is disclosed, together with the fact that defendant previously disclosed the names of the two correction officers who conducted D-Block rounds on the date in question, as well as the D-Block log book for that day, the Court is compelled to find that defendant’s response to question four is also satisfactory.

Finally, the Court finds that defendant’s response to question five is not satisfactory, and this portion of claimant’s motion is granted. Claimant’s request for the names of two inmates that occupied two identified nearby cells from 9/9/02 to 9/17/02 is sufficiently specific and relevant to his claim in that these individuals may be witnesses to the incident. Defendant’s response that it is “unaware of the individuals who were housed at that location at that time” is, quite simply, inadequate and not credible. Nonetheless, should it be true that defendant does not keep a record of inmate placement at each facility, then defendant shall be required to provide claimant with an affidavit from someone with direct knowledge of such information attesting to the fact that no records exist from which the identification of the two inmates occupying cells 6 and 7 in D-Block, 6 company from 9/9/02 to 9/17/02 may be discerned. Otherwise, defendant is directed to provide claimant with the information requested.

Moreover, “because claimant is a layperson representing himself, the Court will direct defendant to produce [the foregoing] information without requiring further formal steps and demands” (Medina v State of New York, Ct Cl, Hard, J., June 14, 2004, UID # 2004-032-045). Defendant is further directed to comply with the Court’s decision within forty-five (45) days from the date of filing of this decision and order.

Accordingly, it is ORDERED that Motion No. M-72619 is granted in part and denied in part.

February 28, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion dated November 21, 2006;
  2. Affidavit in Support of Motion to Compel, with exhibits, sworn to on November 30, 2006; and
  3. Affidavit in Opposition, with exhibits, sworn to on December 14, 2006.