New York State Court of Claims

New York State Court of Claims

MICOLO v. THE STATE OF NEW YORK, #2008-010-020, Claim No. 110324, Motion No. M-75028


Synopsis


Inmate claimant’s motion to compel discovery.

Case Information

UID:
2008-010-020
Claimant(s):
MARCUS A. MICOLO
Claimant short name:
MICOLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110324
Motion number(s):
M-75028
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
MARCUS A. MICOLOPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 22, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on claimant’s motion to compel discovery:
Motion For Court Order............................................................................................1

Attorney’s Affirmation in Opposition and Exhibits...................................................2

Attorney’s Supplemental Affirmation in Opposition and Exhibits..........................3

Attorney’s Second Supplemental Affirmation in Opposition and Exhibits..............4

This claim arises out of an incident that allegedly occurred on October 16, 2004 during claimant’s incarceration at Sing Sing Correctional Facility (Sing Sing). The claim alleges that claimant was assaulted by another inmate due to defendant’s negligent supervision and the placement of surveillance equipment which obstructed the correction officers’ view. The trial of this claim is scheduled for August 7, 2008.

Claimant seeks an order compelling defendant to produce numerous items as set forth at ¶ 7(a-j) of claimant’s “Motion For Court Order.” The Court will address each item seriatim.
Claimant’s demand for “[p]olicy, procedure and directives in

regards to the HBA yard [at Sing Sing] ‘Plot plan.’ ” (¶ 7[a])

Defendant represents that there are no specific policies and procedures for the HBA yard and that the plot plan of the HBA yard cannot be produced because it is confidential and would pose a security risk. Additionally, claimant has not sufficiently demonstrated that the need for a plot plan in the prosecution of his claim would outweigh the security risk posed. Accordingly, the Court finds that defendant properly declined to produce such documents and claimant’s motion as to this demand is DENIED.

Claimant’s demand for “photographs of the area in which I was assaulted from various angles,
including from the guard tower(s). (Photos requested from distances also).” (¶ 7[b])

This demand has already been addressed in discovery and by the Court in its Decision and Order on claimant’s Motion No. M-70222 (Defendant’s Supplemental: Ex. B, ¶ 9; Ex. C, ¶ 13; Defendant’s Affirmation in Opposition: Ex. G, ¶ 2; Ex. B), wherein the Court held that defendant had appropriately responded to claimant’s demand and the Court would not compel defendant’s production of photographs and distances. Accordingly, claimant’s motion as to this demand is DENIED. Claimant is cautioned that duplicative motions are frivolous, burdensome to the Court, and may subject him to sanctions.

Claimant’s demand for “[p]olicy, procedure and directives which regard prison yard searches
prior to yard release. Specifically on the HBA yard in Sing Sing.” (¶ 7[c])

Defendant has responded by attaching New York State Department of Correctional Services Directive 4910, Control of and Search for Contraband, as exhibit I to its Affirmation in Opposition. The Court finds this to be an appropriate response to claimant’s demand. Accordingly, claimant’s motion as to this demand is DENIED.
Claimant’s demand for “[p]olicy, procedure and directives in regards to prison guard to

inmate ratio in/at a Class A. Max. Security yard. Specifically Sing Sing” (¶ 7[d])

The Court notes that this demand has already been addressed in discovery and by the Court in its Decision and Order on claimant’s Motion No. M-70222 (Defendant’s Supplemental: Ex,. D, ¶ 7; Ex¶ C, ¶ 11; Ex. E, ¶ 5; Defendant’s Affirmation in Opposition: Ex. B), wherein the Court held that defendant had appropriately responded to claimant’s demand and the Court would not compel defendant’s production of such items. Accordingly, claimant’s motion as to this demand is DENIED. Claimant is cautioned that duplicative motions are frivolous, burdensome to the Court, and may subject him to sanctions.
Claimant’s demand for “policy, procedure and directive in regards to the preservation

of video footage in the event of an assault or serious injury.” (¶ 7[e])

The Court finds that defendant has appropriately responded to this demand in its representation that there are no policies, procedures, or directives in existence (Defendant’s Supplemental Affirmation at ¶ 7). Accordingly, claimant’s motion as to this demand is DENIED.
Claimant’s demand for “policy, procedure and directive in regards

to the N.Y.S.D.O.C.S.’ penological interests” (¶ 7[f])

The Court finds that defendant has appropriately responded to this demand in its representation that there are no policies, procedures, or directive in existence (Defendant’s Supplemental Affirmation at ¶ 8). Accordingly, claimant’s motion as to this demand is DENIED.
Claimant’s demand for “[t]he operators manual for the electronic

monitoring system in the Sing Sing C.F.” (¶ 7[g])

The Court finds that claimant has failed to demonstrate how the item would be material and necessary to the prosecution of his claim. Accordingly, the Court will not compel production of the manual and claimant’s motion as to this demand is DENIED.
Claimant’s demand“[t]hat a video tape recording be made of the Sing Sing

HBA yard, specifically in the direction of the Claimants assault” (¶ 7[h])

Defendant represents that a videotape recording of claimant’s incident does not exist and this Court finds that claimant has failed to make a sufficient showing warranting a court order compelling defendant to make a videotape recording. Accordingly, claimant’s motion as to this demand is DENIED.
Claimant’s demand“[t]hat the defendant produce incident reports which demonstrate assaults/fight in and around said area of claimant[’]s assault as depicted in claimant[’]s sketch attached to plaintiffs [sic] current claim [past and present].” (¶ 7[i])

The Court GRANTS claimant’s application to the extent that defendant is ordered to produce to the Court, on or before July 30, 2008, for an in camera review, any incident reports regarding assaults which occurred within one year prior to claimant’s alleged assault and which occurred in the same vicinity. Upon an in camera review, the Court will release any discoverable material to claimant.
Claimant’s demand “[t]hat any and all confidential informant

statements and officers notes be produced.” (¶ 7[j])

Defendant represented in its Supplemental Affirmation at ¶12 that no confidential informants’ statements exist and that all officers’ notes regarding this incident have been produced along with the incident report (Supplemental Affirmation at ¶ 12; Ex. I, ¶ 8). However, defendant submitted a Second Supplemental Affirmation indicating that, since the submission of its Supplemental Affirmation, defendant located a confidential memorandum dated November 14, 2004, from Sergeant J. McNamara to the Hearing Officer regarding defendant’s recommendation to place claimant in Involuntary Protective Custody following claimant’s alleged assault in the A Block yard (Ex. A to Second Supplemental Affirmation). A redacted copy of the memorandum was provided to claimant and the Court was provided with an unredacted copy for in camera review. Defendant further affirms that:
“[d]ue to the discovery of this confidential memorandum, an extensive search of Claimant’s records from New York State Department of Correctional Services’, (specifically those records housed at Sing Sing Correctional Facility and Clinton Correctional Facility) was conducted, and with the exception of the confidential memorandum attached ***, no other confidential memorandum or statements were located. See Affidavit from Jeffrey DeLoatch, Sing Sing Correctional Facility, dated July 11, 2008, attached as Exhibit C, and see also Affidavit from Tammy Irwin, Clinton Correctional Facility, dated July 14, 2008, attached as Exhibit D.”
(Second Supplemental Affirmation at ¶3). Upon the Court’s review of both the unredacted and redacted memorandum, the Court finds that defendant appropriately redacted those portions of the memorandum which were not subject to disclosure. Accordingly, defendant has properly responded to claimant’s demand and therefore claimant’s application as to this demand is DENIED.


July 22, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims