New York State Court of Claims

New York State Court of Claims

McCain v. STATE OF NEW YORK, #2007-039-057, Claim No. 108161, Motion No. M-71658


Synopsis


Claimant’s motion for sanctions for defendant’s alleged failure to comply with his demand for discovery is denied. The record before the Court does not establish that defendant willfully failed to adequately respond to claimant’s discovery demand as is required by CPLR 3126. In fact, the record establishes that defendant responded to claimant’s discovery demand in good faith. Accordingly, defendant having partially complied with claimant’s demand, and the Court having no proof before it to conclude that the reasons for defendant’s noncompliance are insufficient, claimant’s motion is denied.

Case Information

UID:
2007-039-057
Claimant(s):
MATTHEW MCCAIN, 00A3481
Claimant short name:
McCain
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108161
Motion number(s):
M-71658
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Matthew McCain, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Frederick H. McGown, IIIAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 24, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Matthew McCain alleges that he was wrongfully deprived of one hour of recreation time over the course of fourteen days, from July 15, 2003 through July 28, 2003. The specific allegations of the claim are more fully described in two prior interlocutory decisions and orders of the Court (Hard, J.) dated December 18, 2003 and June 11, 2004.

By notice of discovery and inspection dated October 18, 2005, claimant sought the following information from defendant: (1) Clinton Correctional Facility’s (hereinafter CCF) D-Block keeplock/no rec. recreation lists from July 15, 2003 through July 28, 2003; (2) the name of the officer “who took” the D-Block keeplock recreation lists from July 15, 2003 through July 28, 2003 and the log verifying the officer’s identity; (3) CCF’s general population recreation lists for the D-4 gallery during the evening of July 29, 2003; (4) the investigation report for grievance claim number CL-48864-03 and the name of the officer who conducted the investigation; (5) oral statements made by claimant during his interview by Sergeant LaPier; and (6) the policy regarding the disposal of daily recreation lists that was filed with the New York State Governor’s Office and the filing date thereof.[1]

On January 13, 2006, defendant served upon claimant its response to claimant’s notice for discovery and inspection. In response to items (2) and (4) above, defendant provided claimant with the names of seven officers, redacted copies of the log book pages listing the “6:00 am rounds & counts . . . KL Rec and shower lists taken,” and a copy of the grievance package and the name of the officer conducting the investigation. Defendant did not provide claimant with any information in response to items (1), (3), (5) and (6) above. In response to item (1), defendant stated that the keeplock no rec./recreation lists are not considered official documents and are disposed of after two weeks. In response to item (3), defendant stated that the requested information “is outside the time frame of the claim.” In response to item (5), defendant stated that the interview was not taped or recorded, and in response to item (6), defendant stated that “[n]o filing has been made or needs to be made as the list [is] not an official document.”

Claimant now seeks an order from the Court pursuant to CPLR 3042 imposing penalties for defendant’s alleged willful failure to comply with his demand for discovery. Defendant opposes the motion on the ground that it has made a good faith effort to comply with claimant’s demands and that, as for those items defendant did not produce, it cannot be expected to produce items that no longer exist, that never existed or that are outside of the time period referenced in the claim. It is well settled that “the nature and degree of the sanction to be imposed [pursuant to CPLR 3126] is a matter that rests within the trial court’s discretion” (Negro v St. Charles Hosp. and Rehab. Ctr., 44 AD3d 727, 728 [2007]). CPLR 3126 requires the movant to establish, among other things, that a party “wilfully fail[ed] to disclose information which the court finds ought to have been disclosed.” A party’s “willful and contumacious conduct” has been inferred from the repeated failure to adequately respond to discovery demands, even after the issuance of a court order, and insufficient reasons for the failure to comply (Watson v Hall, 43 AD3d 435 [2007]; see also Goldstein v Kingsbrook Jewish Med. Ctr., 39 AD3d 816, 817 [2007]).

The record before the Court does not establish that defendant willfully failed to adequately respond to claimant’s discovery demand. In fact, the record establishes that defendant responded in good faith to claimant’s October 18, 2005 notice for discovery and inspection. Defendant partially complied with claimant’s demand by providing him with the names of seven officers, redacted copies of the log book, a copy of the grievance package and the name of the officer conducting the investigation. Additionally, defendant continues to maintain that it is unable to comply with the remainder of claimant’s demand because the information sought no longer exists, never did exist or is outside of the time period referred to in the claim. Defendant having partially complied with claimant’s demand, and the Court having no proof before it to conclude that the reasons for defendant’s noncompliance are insufficient, claimant’s motion for relief pursuant to CPLR 3042 must be denied.

Accordingly, it is hereby ordered that Motion No. 71658 is denied.


January 24, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion for Preclusion Pursuant to CPLR 3042 ( c); (d) dated April 7, 2006;
  2. Affidavit in Support of Notice of Motion for Preclusion Pursuant to CPLR 3042 ( c) and
(d) by Matthew McCain sworn to on April 7, 2006;
  1. Affirmation in Opposition by Frederick H. McGown, III, AAG dated May 22, 2006;
  2. Further Notice of Motion for Preclusion dated May 30, 2006; and
  3. Affidavit in Support of Notice of Further Motion for Preclusion by Matthew McCain sworn to on May 30, 2006 with exhibit.

[1]. The numeric sequence of the requested information does not mirror the numeric sequence of items requested within claimant’s notice of discovery and inspection, but rather the information has been condensed for purposes of this decision and order.