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
; 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.