New York State Court of Claims

New York State Court of Claims

KING v. THE STATE OF NEW YORK, #2008-030-554, Claim No. 114673, Motion No. M-75057


Synopsis


Motion by inmate claimant to compel discovery and for sanctions denied. Civil Practice Law and Rules §3126 allows a Court to impose sanctions for a willful failure to disclose information that a Court finds should have been disclosed, or for a failure to obey an order to disclose. No order extant directing disclosure, thus no refusal. Additionally, State has provided the information requested, rendering the present motion moot.

Case Information

UID:
2008-030-554
Claimant(s):
LIONEL KING
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
KING
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114673
Motion number(s):
M-75057
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LIONEL KING, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 27, 2008
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 discovery


and inspection:

1,2 Notice of Motion to Compel Discovery and Inspection; Affidavit in Support of Motion to Compel Discovery and Inspection by Lionel King, claimant

  1. Affirmation in Opposition to Motion to Compel Discovery by Jeane L. Strickland Smith, Assistant Attorney General and attached papers
4,5 Filed papers: claim, answer

Lionel King alleges in his claim that defendant’s agents at Green Haven Correctional Facility negligently failed to maintain a shower area in that facility, causing the inmate claimant to slip, fall, and suffer injury on or about February 3, 2007. More specifically, he alleges that correctional personnel failed to assure better safety by failing to place rubber shower mats in these hazardous areas.

In the affidavit in support of his motion Mr. King asks that the defendant be directed to “produce and permit the claimant or his attorney to inspect, copy, or photograph all books, papers, reports or documents relating to the accident of February 3, 2007, including all incident reports.” [Affidavit in Support of Motion to Compel Discovery and Inspection by Lionel King, claimant, ¶2]. Although it is not indicated in his affidavit, it appears that claimant served a demand on the defendant on or about April 24, 2008, that sets forth what documents are requested in more detail, and to which defendant has now responded in light of this motion.

Civil Practice Law and Rules §3101, setting forth the scope of disclosure in a civil case and applicable in the Court of Claims [see Court of Claims Act §9(9)], provides in pertinent part 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 . . . ”

When a party fails to respond in some fashion to a demand, the other party may make a motion to compel such as this one. Civil Practice Law and Rules §§3124, 3126. The party making the motion should append a copy of the demand at issue. Notably, disclosure demands - which are by nature documents served on another party - are required to be filed with the Chief Clerk of the Court of Claims. See 22 NYCRR §206.5(c). Thus, although the demand was not appended to the motion papers, a copy of same had been duly filed in the Office of the Chief Clerk of the Court of Claims on April 28, 2008, and defendant has responded to it in the Affirmation in Opposition filed herein [see Affirmation in Opposition to Motion to Compel Discovery by Jeane L. Strickland Smith, Assistant Attorney General] thus this aspect of support for the motion is satisfied.

With regard to the discovery requests that are the subject of this motion, defendant has now responded to the request and included documents that are available, reserving the right to supplement its response in the event additional information becomes available. Photocopies of documents provided include: an Inmate Injury Report dated February 3, 2007; Inmate Grievance Complaint dated February 20, 2007, investigation report and result; Decision by Central Office Review Committee [CORC] on grievance number UST-27727-06[2]; Notice of Intention to File a Claim stamped received by Attorney General’s Office on April 30, 2007 showing service by certified mail, return receipt requested. [See Affirmation in Opposition to Motion to Compel Discovery by Jeane L. Strickland Smith, Assistant Attorney General, attached papers]. Additional responses indicates that there are no known Inspector General documents and no known witness statements. [See ibid. ¶¶ 3 (b) and 3 (e)].

Although Civil Practice Law and Rules §3126 allows a Court to impose sanctions for a party’s willful failure to disclose information that a Court finds should have been disclosed, or for a failure to obey an order to disclose, here, the State has not refused to obey a court order, as there is no order extant directing disclosure. See Civil Practice Law and Rules §3124. Additionally, the State has now provided the information requested, rendering the present motion moot.

Accordingly, based on the foregoing, claimant’s motion to compel discovery is denied.


August 27, 2008
White Plains, New York

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




[2]. This grievance appears to refer to a different matter involving showers occurring at Upstate Correctional Facility.