New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2008-030-576, Claim No. 113367, Motion No. M-75592


Synopsis


Discovery demands are denied in part and granted in part. Pro se inmate claimant alleges that while he was incarcerated at Sing Sing he saw asbestos and lead paint being removed in the mess hall, yet the mess hall was kept open for the three daily meals served to inmates. He alleges generally that this activity violates the state constitution, the eighth amendment to the federal constitution, the Americans with Disabilities Act, and placed his health at risk.

Case Information

UID:
2008-030-576
Claimant(s):
BERNARD THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113367
Motion number(s):
M-75592
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
BERNARD THOMAS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
November 14, 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 [M-75592] to


compel discovery:

1,2 Notice of Motion to Compel Discovery and Inspection per N.Y. C.P.L.R. 3124; Affidavit in Support of Motion to Compel Discovery and Inspection per N.Y. C.P.L.R. 3124 by Bernard Thomas, Claimant and attached affidavit of service

  1. Affirmation in Opposition to Motion to Compel Discovery by Elyse J. Angelico, Assistant Attorney General and attached exhibits
4-6 Filed papers: Claim, Answer; Decision and Order, Thomas v State of New York, UID # 2007-030-570, Claim No. 113367, Motion No. M-73764 (Scuccimarra, J., October 1, 2007) Bernard Thomas alleges in his claim that while he was incarcerated at Sing Sing Correctional Facility [Sing Sing] he saw asbestos and lead paint being removed in the mess hall on or about September 11, 2006, yet the mess hall was kept open for the three daily meals served to inmates. He alleges generally that this activity violates the State Constitution, the eighth amendment to the Federal Constitution, the Americans with Disabilities Act, and placed his health at risk. He seeks damages in the amount of $5,000,000.00.

In the present motion, claimant seeks to compel disclosure of (1) “all records, reports, laboratory analyses and related documentation concerning inspections of the mess hall area at Sing Sing Correctional Facility . . . relating to the determination of the presence of lead paint from September of 2006 to June of 2008 . . .”; (2) the same information with regard to the presence of asbestos in the mess hall area for the same period of time; (3) and (4) similar records for the inmate cell areas of Building Number 5 concerning lead paint and asbestos; (5) “all present and current records, reports, laboratory analyses, and related documentation concerning the [mess hall and Building Number 5 cell] areas of . . . Sing Sing . . . that have been produced and compiled by and from inspections by local, state and federal agencies including the Occupational Safety and Health Administration . . . [OSHA]”; (6), (7) and (8) all copies of claims against the State of New York or the New York State Department of Correctional Services or their employees and underlying “briefs, legal memoranda, depositions, cross-motions, settlements, and trial verdicts . . .” filed in state and federal courts with regard to such lawsuits; (9) all inmate grievances filed concerning lead paint and asbestos contamination at Sing Sing during the years 2000 through 2008; (10) copies of all log book entries for the Chapel area of Sing Sing from April 2006 through June 2006; and (11) all claimant’s medical files maintained by DOCS from August 2007 through August 2008.

In the affidavit in support of the present motion, claimant indicates that he served an “annexed” discovery request upon defendants on June 2, 2008, but does not attach same to his moving papers. [Affidavit in Support of Motion to Compel Discovery and Inspection by Bernard Thomas, Claimant, ¶4]. He describes the pending claim as one to “recover damages for personal injuries . . . sustained as a result of the negligent actions and inactions of the defendant, the State of New York, by wrongfully permitting and failing to cure the exposure of . . . [Mr. Thomas] to hazardous and toxic substances in the environment of . . . Sing Sing . . . ” [Ibid. ¶3]. Claimant has yet to indicate exactly what personal injuries resulted from any alleged exposure to potentially toxic substances such as asbestos or lead paint.[1]

Civil Practice Law and Rules §3101(a) requires “. . . full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “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. CPLR 3101 (subd. [a]) should be construed, . . . to permit discovery of testimony ‘which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable’. . . (citation omitted).” Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 (1968). Demands for discovery of documents and things “shall set forth the items to be inspected, copied, tested or photographed by individual item or by category, and shall describe each item and category with reasonable particularity.” Civil Practice Law and Rules §3120 (2). “The court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” See Civil Practice Law and Rules § 3103(a); see e.g Wind v Eli Lilly & Co., 164 AD2d 885 (2d Dept 1990).

Claimant’s demands are denied in part and granted in part. Except with respect to the demand for medical records, and to some extent, the demand for copies of grievance reports and log book entries, the demands are generally overbroad and vague, in that they either do not describe the items sought with sufficient particularity and/or it is not apparent how the material is relevant to issues raised by the claim. Some documents are not in the control of the defendant, such as federal inspection reports; or are otherwise available as public records, while others may have privileges attached such as litigation materials in putative (and unspecified) underlying lawsuits. The overbreadth of the demands makes it difficult to address same.

As conceded by defendant, the use of the words “all” or “any and all” does not necessarily render a demand palpably improper. Here, however, the use of such language makes it difficult to adequately respond, if only to say that requested documents do or do not exist. More specifically, for example, if there were tests and reports generated by State personnel regarding asbestos abatement or lead paint removal, based upon the allegations in the claim they might be material and relevant within the time frame alleged in the claim or a reasonable period before the date of the alleged exposure on September 11, 2006. If there were inspections of the mess hall area, cell and chapel areas - asserted in the claim as having undergone construction work in 2006 [see Claim Number 113367, ¶2] - and if any reports or work orders were generated as a result of such inspections, same would be material and relevant. Claimant’s request, however, describes a period from “September of 2006 to June of 2008” which is not material and relevant to the prosecution of the claim before the court.

Accordingly the requests for production of documents numbered (1) through (5) in claimant’s demand is largely denied, except if any such inspections or reports or work orders were made in the one (1) year period before claimant’s alleged exposure on September 11, 2006, defendant is directed to advise claimant of the cost for reproducing same in writing. Upon payment of the cost for reproduction of such documents, defendant is directed to provide same to claimant. If no inspection reports or work orders relative to the pertinent areas were generated, defendant should so advise claimant in writing.

With regard to any Inmate Grievance Reports of grievances filed by others concerning exposure to asbestos or lead paint, these are clearly material and relevant in terms of notice to the State, although claimant’s demand as phrased is overbroad. Defendant argues that copies of grievance complaints filed by individuals may not be disclosed and are “restricted to the recipient and may only be produced via court order for in camera inspection”, and refers to Civil Rights Law §50-a(1) and Prisoners’ Legal Services v New York State Department of Correctional Services, 73 NY2d 26, 31 (1988) in support of such position. [See Affirmation in Opposition to Motion to Compel Discovery by Elyse J. Angelico, Assistant Attorney General, ¶9]. The foregoing is pertinent to attempts to obtain copies of the personnel records or grievance records of state employees, however, not grievance complaints by inmates concerning potentially toxic conditions. No other privilege has been asserted nor has any other argument against disclosure been advanced.

Accordingly, defendant is directed to search the grievance records for a one (1) year period prior to September 11, 2006 to determine first, if there were any inmate grievance complaints concerning asbestos and lead paint in the mess hall, chapel and Building 5 cell areas. If none were filed, defendant should so advise claimant in writing. If such grievances were filed, defendant is directed to provide claimant with the cost of reproducing the report of the decisions on such grievances, in writing. Upon payment of the cost for reproduction of the documents, defendant is directed to provide same to claimant.

Defendant has indicated that it has made a request for copies of log book entries from the Sing Sing Chapel area from April 2006 to the end of May 2006, and same will be provided to claimant. In addition to such efforts, defendant is also directed to advise claimant in writing if such documents do not exist.

With regard to the medical records requested, defendant indicates that claimant’s records through May 21, 2007 have already been provided, and notes that “no explanation” for why claimant is requesting additional records is advanced. [See Affirmation in Opposition to Motion to Compel Discovery by Elyse J. Angelico, Assistant Attorney General, ¶11]. It is also argued that such records are available through the Freedom of Information Law [FOIL] process. Public Officers Law §89. In this court’s earlier decision concerning discovery of medical records, [see Thomas v State of New York, UID # 2007-030-570, Claim No. 113367, Motion No. M-73764 (Scuccimarra, J., October 1, 2007)] the court noted the defendant’s indication that it would supply “updated records” as they became available. Accordingly, defendant is directed to provide same as promised earlier. While it is true that the FOIL mechanism is available to claimant, such is not a reason for denying document discovery requests in the control of a party. Moreover, claimant’s medical condition remains relevant.

Accordingly, claimant’s motion is granted in part and denied in part as set forth above. The matter has been scheduled for trial on December 16, 2008.





November 14, 2008
White Plains, New York

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




[1]. Indeed, if it is a so-called “toxic tort” claimant is alleging, his claim of harm from exposure - if any - may not even have accrued at this juncture. See Civil Practice Law and Rules §214-c. To establish a cause of action for a toxic tort a claimant must first show that he was exposed to the particular toxin; must establish “general causation”, which is proof that the toxin in question can in fact cause the illness, and the amount of exposure required to cause the illness from which it is alleged he suffers; and then “specific causation,” meaning the likelihood that claimant’s illness was caused by the toxin, including eliminating other potential causes of the disease. Parker v Mobil Oil Corp, 7 NY3d 434 (2006). An expert opinion is required to address these issues.