New York State Court of Claims

New York State Court of Claims

BARNES v. STATE OF NEW YORK, #2008-037-012, Claim No. 100753, Motion No. M-73884


Synopsis



Case Information

UID:
2008-037-012
Claimant(s):
JESSIE J. BARNES
Claimant short name:
BARNES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100753
Motion number(s):
M-73884
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Jessie J. Barnes, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. MillerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 7, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Claimant’s motion to compel discovery:
1. Notice of motion and supporting affidavit of pro se Claimant, Jessie Barnes, sworn

to August 3, 2007, with annexed Exhibits A-X;

2. Unsworn “supplemental motion letter” of pro se Claimant, Jessie Barnes, dated

August 10, 2007, with annexed Exhibits Y and Z;

3. Opposing affirmation of Assistant Attorney General Gregory P. Miller dated

November 14, 2007, with annexed Exhibits A-B;

4. Reply affidavit of pro se Claimant, Jessie Barnes, sworn to December 3, 2007, with

annexed Exhibits AA-CC;

5. Letter of pro se Claimant, Jessie Barnes, dated December 28, 2007;

6. Letter of Assistant Attorney General Gregory P. Miller dated January 3, 2008, with

annexed Exhibits;

7. Letter of pro se Claimant, Jessie Barnes, dated January 30, 2008;

8. Letter of Assistant Attorney General Gregory P. Miller dated February 5, 2008, with

annexed Exhibit;

9. Letter of pro se Claimant, Jessie Barnes, dated February 11, 2008;

10. Letter of pro se Claimant, Jessie Barnes, dated February 12, 2008.


Filed papers: Claim filed July 20, 1999; Amended Claim filed August 20, 1999; Answer filed June 7, 2000.

This is an action for personal injuries arising out of an incident which occurred on October 24, 1998 while the pro se Claimant was incarcerated at Collins Correctional Facility (Collins) when he was allegedly assaulted and beaten by several Correction Officers. Claimant brings this motion for an in camera inspection of documents relating to Claimant’s discovery requests of April 15, 2003 and April 12, 2007, an in camera inspection of Policy #4555, and to compel Defendant to produce surveillance information and original videotapes, or for an order striking Defendant’s answer. Each of these demands will be addressed seriatim. Before doing so, however, a brief review of the procedural history of this claim will be helpful.

On December 8, 1999, Claimant served his first demand for disclosure (Claimant’s Exhibit C). In Defendant’s October 26, 2000 response to Claimant’s demands for production of videotapes and surveillance tapes, it noted: “we do possess videotapes of portions of the subject incident that will be produced at the time of trial. Pursuant to certain security issues, these tapes will not be turned over to you at this time.” (see ¶ E, Claimant’s Exhibit D). Claimant then made a motion to compel the production of these videotapes. By decision and order dated July 18, 2001 (Claimant’s Exhibit E), the Hon. Edgar C. NeMoyer ordered Defendant to produce, at Claimant’s expense, copies of the videotapes of the October 24, 1998 incident and copies of the audiotape recording of the disciplinary proceeding against Claimant arising out of this incident. Claimant was eventually permitted to view a videotape of the October 24, 1998 incident, but he alleges that Defendant improperly altered it. Defendant argues that the videotape was not altered and that the tapes from two different cameras were merely spliced together so that all of the surveillance could be viewed on one tape.

On or about April 15, 2003, Claimant served his demands for disclosure of surveillance videotape evidence (Claimant’s Exhibit I), requesting information about the surveillance cameras at Collins, their manufacturer, and requesting the identity of those who handled the tapes and spliced them. Several months later, before receiving a response to his demands, Claimant moved to preclude Defendant from offering evidence relating to the video and audio tapes that were to be provided to Claimant and, alternatively, an order striking Defendant’s answer and for summary judgment. In a decision and order dated June 21, 2004, the Hon. Ren
é
e Forgensi Minarik ordered:
“Defendant is hereby precluded from offering any evidence or testimony relating to audio and video recordings of the October 24, 1998 incident and Claimant’s subsequent disciplinary hearing, unless, within 45 days of the filed date of this decision and order, Defendant provides to Claimant copies of those video and audio recordings at no cost to Claimant.”

In addition, Judge Minarik ordered Defendant to produce the original, unspliced surveillance tapes at trial so that they could be compared with the copies provided to Claimant. In a subsequent decision and order dated November 24, 2004 (Claimant’s Exhibit K), Judge Minarik denied Claimant’s motion for reargument of her June 21, 2004 decision and order, and denied Claimant’s motion to strike Defendant’s answer for failing to provide Claimant with a copy of the audiotape of the disciplinary hearing, noting that her previous decision and order set the penalty at preclusion for failing to provide the tape.[1]

On or about April 12, 2007 Claimant served another disclosure demand (Claimant’s Exhibit L). By this demand, Claimant sought information regarding the number on each of the cameras located at various points at Collins, and diagrams indicating the positioning of each camera on the wall. Subsequently, Claimant demanded a copy of Policy #4555 (Claimant’s Exhibit V) and a copy of the “chain of custody sheet” (Claimant’s Exhibit M). Defendant failed to respond to any of these demands to Claimant’s satisfaction, prompting this motion.

Claimant’s April 15, 2003 Demands for Disclosure of Surveillance Videotape Evidence

(Claimant’s Exhibit I).

On July 24, 2007, approximately four and a half years after this demand was served, Defendant provided its response to Claimant’s April 15, 2003 discovery demand (Claimant’s Exhibit Y). In its response, Defendant objected to each demand on the grounds that the demand was “irrelevant to this litigation,” and, in some cases that the demand was not a proper item to be demanded with this type of a discovery demand. Rule 3122 of the CPLR requires the party objecting to a disclosure demand to state with reasonable particularity the reason for each objection and to do so within twenty days of service of the disclosure demand. The Defendant’s failure to object to Claimant’s disclosure demand in a timely manner forecloses inquiry into the propriety of each demand except with respect to demands that are privileged or those that are palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]).

In opposition to this motion, Defendant submitted an affidavit of Philip Greis, Deputy Superintendent of Security at Collins (Defendant’s Exhibit B), who, for the first time, raised certain security concerns with respect to Claimant’s April 15, 2003 discovery demand. These concerns and any other claim of privilege must be considered when reviewing Defendant’s responses.

In response to Claimant’s demands numbered 1, 2 and 3, Defendant objected to these demands on the grounds that they were irrelevant to the litigation and not a proper item to be demanded by this type of discovery demand (see Claimant’s Exhibit Y). This response is disingenuous considering Claimant’s position that the surveillance tapes have been altered. Even Mr. Greis’ supplemental response (see Defendant’s Exhibit B), only partially responds by stating that no outside agencies had physical possession of the surveillance tapes, that there is no single custodian within the Department of Correctional Services (DOCS) at Collins for use of force videotapes, and that there is no record maintained listing the personnel at Collins who were in possession of these videotapes or who were involved with the splicing of these videotapes. Because of the lateness of Defendant’s responses and because there is no claim of privilege or security concerns, Defendant is directed to provide a more complete response to demands 1, 2 and 3 by providing Claimant with the names, titles and dates of all personnel at Collins who were in possession of any part of the surveillance tapes or who were involved in the splicing of the videotapes of the October 24, 1998 incident.

Claimant’s demands numbered 4, 7 and 10, seek identification numbers and information regarding certain surveillance cameras at Collins. Defendant’s initial response to these demands (Claimant’s Exhibit Y) was insufficient due to the lateness of the response as it merely claimed that this information was not relevant. Mr. Greis, however, raises security concerns if information in response to these demands were disseminated to inmates and the Court agrees. Accordingly, no further response to Claimant’s demands numbered 4, 7 and 10 need be provided by Defendant.

Claimant’s demands numbered 5, 6, 8, 9, 11, and 12 request photographs of certain surveillance cameras at Collins. Again, Defendant’s initial response was unsatisfactory. Mr. Greis, however, responds that there are no photos of the areas requested (Defendant’s Exhibit B). The Court may not compel a party to create a document or a photograph not in existence. Accordingly, no further response to demands numbered 5, 6, 8, 9, 11, and 12 need be provided by Defendant.

In his demand numbered 13, Claimant requests the name and address of the company that installed the surveillance camera monitoring system at Collins and the date such system was installed. Defendant’s only basis for objection is that the information requested is irrelevant. While this objection might have been plausible if raised in a timely response, it was raised for the first time in Defendant’s response served four years after the demand was served. Because the response was untimely and because there is no claim of privilege or security concerns, Defendant is directed to respond to this demand.

In demand numbered 14, Claimant seeks production of the authorities or policies outlining the procedures for preserving surveillance videotapes. Initially, Defendant objected to this demand solely on the ground that the information requested was not relevant. The Court disagrees. Mr. Greis, however, in his affidavit served in opposition to this motion, raised security concerns in the event the requested documents were disseminated to inmates. Because of these security concerns, Defendant is directed to produce to the Court for an in camera inspection two copies of the authorities or policies which outline the procedures which existed in 1998 for preserving surveillance videotapes within 45 days of the filing of this decision and order. One of the copies should be unaltered and the second copy should be redacted so as to protect the security concerns of DOCS.

Claimant’s April 12, 2007 Disclosure Demand Pursuant to CPLR 3120

(Claimant’s Exhibit L).

In his April 12, 2007 discovery demand, Claimant sought the numbers of certain surveillance cameras at Collins and diagrams or blueprints regarding the placement of these cameras on the walls of Collins. These demands are similar to demands made by Claimant in his April 15, 2003 discovery demand. Defendant’s responses to these demands, however, were timely (Claimant’s Exhibit N). In its response, Defendant objected to each of Claimant’s demands on the grounds that the information requested was irrelevant and because its release would create a security risk. The Court agrees that dissemination of the requested information could create a security risk and, accordingly, Defendant need provide no further response to Claimant’s April 12, 2007 discovery demand.

Claimant’s Request for Policy #4555
(Claimant’s Exhibit V)[2]

In response to Claimant’s request for a copy of Directive No. 4555, Defendant takes the position that this Directive is available through a Freedom of Information Law (FOIL) request and that this Directive is not relevant because it does not apply to the SHU. The mere fact that a copy of this Directive may be available by a FOIL request or even available from the facility library, does not foreclose a CPLR 3120 demand once an action has been commenced. Because there is no claim of privilege or of a security concern, Defendant is directed to provide Claimant, at no cost, a copy of Directive No. 4555 within 45 days of the filing of this decision and order. Claimant is reminded, however, that the fact that a document is deemed to be discoverable, does not necessarily mean that it will be admissible at trial. Defendant correctly notes that this Directive does not appear to apply to the SHU or to surveillance videotapes. The admissibility of this or any other document is preserved for trial.

Claimant’s Demand for Chain of Custody Memoranda (Claimant’s Exhibit M).

In response to this request, Defendant advises that there are no chain of custody memoranda prepared in connection with surveillance videotapes. The Court may not direct a party to create a document when none exists. Accordingly, no further response to this demand is required.

Claimant’s Motion to Strike Defendant’s Answer

Claimant requests that Defendant’s answer be stricken if the Defendant fails to produce for Claimant’s inspection the original and unspliced videotapes of the October 24, 1998 incident. Similar relief was requested by Claimant in his motion M-67992 heard by the Honorable Ren
é
e Forgensi Minarik. In her June 21, 2004 decision and order (Claimant’s Exhibit J), Defendant was precluded from offering evidence or testimony relating to the audiotape and videotape recordings of the October 24, 1998 incident unless Defendant provided Claimant with copies of the audiotapes and videotapes. Defendant was further ordered to produce at trial the original, unspliced surveillance tapes so they could be compared to the copies provided to Claimant at the time of trial. From a review of the file, it appears that Defendant complied with Judge Minarik’s decision and order and produced to Claimant a copy of the videotape in its possession. Because this issue has been decided by Judge Minarik’s prior decision and order which set the penalty at preclusion in the event that Defendant failed to produce the original, unspliced videotapes at trial, Claimant’s present motion to compel the immediate production of the original videotapes or strike Defendant’s answer is denied.

Finally, Claimant indicates in his December 28, 2007 letter to the Court that “there is already an adverse inference pending against the Defendant in this claim for destruction of audiotapes [of the disciplinary hearing following the October 24, 1998 incident] pursuant to Hon. Renee [sic] Forgensi Minarik, Court of Claims Justice Order on Motion No. M-67992 dated June 21, 2004.” To the contrary, Judge Minarik’s June 21, 2004 decision and order (Claimant‘s Exhibit J) set the penalty at preclusion in the event Defendant failed to comply with her decision and order. Moreover, in Claimant’s subsequent motion to reargue and motion to strike Defendant’s answer (M-68789 and M-69065), Judge Minarik denied Claimant’s motion to strike the Defendant’s answer for its failure to provide Claimant with a copy of the audiotape of the disciplinary hearing reasoning that “[t]here is no reason to believe Defendant’s inability to find the audiotape is contumacious and, therefore, deserving of a more severe penalty than preclusion . . .” (see Judge Minarik’s decision and order dated November 24, 2004, a copy of which is attached to Defendant’s letter to the Court dated January 3, 2008).

Both parties are strongly urged to settle their continuous bickering over discovery matters and prepare for trial which this Court intends to schedule in the near future.

Based on the foregoing, it is hereby

ORDERED, that Claimant’s motion with respect to his April 15, 2003 demand for disclosure of surveillance videotape evidence is granted to the extent that Defendant is directed to provide a more complete response to Claimant’s demands numbered 1, 2, 3, 13 and 14 as indicated above within 45 days of the filing of this decision and order, but denied with respect to demands numbered 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the April15, 2003 demand and no further response to these demands is necessary; and it is further

ORDERED, that Claimant’s motion with respect to his April 12, 2007 disclosure demand is denied in its entirety and no further responses to this demand are necessary; and it is further

ORDERED, that Claimant’s motion with respect to his demand for a copy of Directive No. 4555 is granted and Defendant is directed to provide Claimant with a copy of this directive within 45 days of the filing of this decision and order; and it is further

ORDERED, that Claimant’s motion with respect to his demand for the chain of custody memoranda is denied; and it is further
ORDERED, that Claimant’s motion to strike the Defendant’s answer is denied.



April 7, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Judge Minarik noted in her November 24, 2004 decision and order, that Defendant had complied with her prior order and provided Claimant with a copy of the surveillance videotape.
[2]. In his letter request, Claimant requests a copy of Policy #4555. He is actually requesting, however, a copy of Directive No. 4555. Henceforth, this document will be appropriately referred to as a Directive.