New York State Court of Claims

New York State Court of Claims

BANKS v. STATE OF NEW YORK, #2008-039-082, Claim No. 106549, Motion No. M-74502


Synopsis


Claimant’s motion to compel is granted in part and denied in part. Claimant did not offer any proof to show that he served a demand for discovery upon defendant, or any other proof, which would establish that he attempted to obtain the requested materials from defendant prior to making this motion. The Court is unable to direct defendant’s compliance with claimant’s request that a retired DOCS’ officer answer his proposed interrogatories since the officer is not a party to the claim.

Case Information

UID:
2008-039-082
Claimant(s):
CHRISTOPHER BANKS, 97-A-5382
Claimant short name:
BANKS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106549
Motion number(s):
M-74502
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Christopher Banks, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Frederick H. McGown, IIIAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 4, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Clinton Correctional Facility at the time of the circumstances alleged herein, seeks damages related to injuries he allegedly sustained on January 3, 2002 when he slipped and fell while attempting to board a van that was scheduled to transport him to a medical appointment. Claimant alleges that at the time of his accident the weather conditions were “slippery and icy” and that a 12” chain was placed around his legs. He further alleges that in order to board the van he had to traverse a 24” gap between the ground and the opening of the van.

Claimant now moves the Court for an order compelling defendant to (1) direct Correction Officer Fountain to answer various interrogatories; (2) direct the New York State Department of Correctional Services (hereinafter DOCS) to provide claimant with copies of all medical records related to the diagnosis, treatment and prognosis of injuries sustained by him in connection with the January 3, 2002 incident; (3) direct DOCS to submit to the Court for in camera review directives 4906, 4901, 4302 and 4017 related to the transfer and transport of inmates and (4) direct DOCS to provide claimant with copies of all incident reports, unusual occurrence reports, follow up reports or other reports related to the January 3, 2002 incident. Claimant also moves the Court for an order granting him the provision of expert witnesses and an adjournment of the trial.

Defendant opposes the motion and states that Fountain retired from DOCS on May 25, 2007. Defendant further provides that claimant’s medical file is available for his review, by appointment, at his current location; that the requested directives are either classified as security items and cannot be distributed to inmates or are available to claimant; that copies of claimant’s inmate injury report, inmate grievance complaint and a “To/From” form prepared by Fountain are attached as exhibit “A” to defendant’s opposing affirmation; that there is no provision for the appointment of expert witnesses to litigants suing the State; and that the Court has already granted an adjournment of the trial.

CPLR 3124 provides that “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.” The presumption being that a demand for discovery must be made before movant may seek an order from the Court compelling discovery (see Ramos v State of New York, UID # 2007-030-572, Claim No. 112096, M-73896, Scuccimarra, J., October 23, 2007).

Here, claimant has not offered sufficient proof in support of his motion to compel defendant to provide him with discovery materials. Claimant did not offer any proof to show that he served a demand for discovery upon defendant, or any other proof, which would establish that he attempted to obtain the requested materials from defendant prior to making this motion (see Fulton v Allstate Insurance Co., 14 AD3d 380, 382 [2005]). Moreover, in opposition to the motion, defendant has responded to the demands as set forth therein. Thus, to the extent that claimant seeks an order from the Court compelling defendant to disclose various materials, the motion must be denied.

The Court notes that Fountain has retired and is no longer in defendant’s control (see Medina v State of New York, UID #2007-044-500, Claim No. 109170, M-72754, Schaewe, J., January 10, 2007). Accordingly, the Court is unable to direct defendant’s compliance with claimant’s request that Fountain answer the proposed interrogatories. Moreover, “a demand for interrogatories may only be made upon a party to an action” (Carp v Marcus, 116 AD2d 854, 856 [1986]). Since the State of New York, and not Fountain, is the named defendant to this claim, the Court may not direct that interrogatories be served on Fountain. Additionally, should claimant seek to depose Fountain or have him testify at the trial of this matter, and since “[c]laimant is not a person authorized to issue a subpoena, he must seek a Court order allowing the issuance of a subpoena upon proper motion” (Carter v State of New York, UID #2005-030-565, Claim No. 109781, M-71003, Scuccimarra, J., December 22, 2005), and satisfy “his burden of establishing that [Fountain’s] testimony is material and necessary” (Medina v State of New York, supra).

Claimant also seeks the production of four DOCS directives. Defendant opposes the production of directives 4901 and 4906 on the ground that they are classified as D security items and are not to be distributed to inmates. Defendant is directed to produce for the Court’s in camera review copies of directives 4901 and 4906, together with copies of any DOCS rules or regulations classifying the documents as security items. Defendant further avers that claimant can obtain a copy of directive 4017 from his facility’s law library and a redacted copy of directive 4302 from DOCS Central Office. Claimant should therefore seek production of directives 4017 and 4302 in the manner suggested by defendant before he attempts any additional assistance from the Court with respect to these discovery items.

In addition to the foregoing, claimant should also contact the medical staff at his current housing location and schedule an appointment to review the personal medical records that he seeks in connection with this matter before requesting any additional assistance from the Court with respect to the production of such documents. The Court also notes that copies of the injury report, grievance complaint and “To/From” form were not attached as Exhibit “A” to AAG McGown’s affirmation that was filed with the Clerk of the Court. Accordingly, defendant is directed to provide claimant with copies of these items, if it has not done so already.

Finally, “claimant provides no statutory or case authority authorizing the payment of expert witness fees in civil cases brought by litigants” (Ciaprazi v State of New York, 276 AD2d 816, 817 [2000]). “Rather, it has been held that even in cases involving in forma pauperis litigants, plaintiffs are responsible for bearing the cost of their litigation” (id.). Thus, claimant’s request for the provision of expert witnesses must be denied.

Accordingly, the trial of this matter having been previously adjourned, without date, it is hereby

ORDERED that M-74502 is granted in part to the extent that defendant is directed to provide for the Court’s in camera review copies of DOCS directives 4901 and 4906 and any DOCS rules or regulations classifying the directives as security items; and it is further

ORDERED that M-74502 is granted in part to the extent that defendant is directed to provide claimant with copies of the inmate injury report, inmate grievance complaint and “To/From” form prepared by Fountain if it has not done so already; and it is further

ORDERED that M-74502 is denied in all other respects.


June 4, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated January 28, 2008;
  2. Affidavit in Support of Motion by Christopher Banks sworn to on January 28, 2008 with exhibits;
  1. Affirmation in Opposition to Motion by Frederick H. McGown III, AAG, dated on February 12, 2008; and
  1. Reply Affidavit by Christopher Banks sworn to on February 15, 2008.