For the reasons set forth below, Claimant’s motion to compel the State to
respond to discovery demands is granted in part and denied in part.
Claimant alleges that, on January 2, 2003 at approximately 7:30 p.m., he was
struck by the heavy security door that separates the sleeping quarters from the
day room at the N-1 dormitory at Bare Hill Correctional Facility in Malone
(hereinafter Bare Hill). Claimant asserts that as he exited the telephone
booth, the door was “whipped open” and struck him in the face and
head (Claim, ¶ 5). Claimant further asserts that the State had notice of
the defective and dangerous condition of the door (Claim, ¶ 6). It is
alleged that the door was improperly maintained; that it often gets stuck
“requiring sudden force to be applied from the sleeping-quarter side to
‘whip’ the door open” (Claim, ¶ 4).
On June 10, 2007, Claimant sent a demand for discovery to Defendant. The demand
seeks: (1) copies of all complaints regarding the day room/sleeping quarters
security door in the N-1 dormitory at Bare Hill for the period January 20, 2002
through January 31, 2003; (2) copies of all repair orders concerning the door
for the period January 20, 2002 through January 31, 2003; and (3) copies of all
repairs and work orders covering the period January 20, 2002 through January 31,
2003 see Ex. C attached to Motion).
By letter dated July 9, 2007, Assistant Attorney General Glenn King advised Mr.
Terry that he had forwarded Mr. Terry’s demand to Bare Hill and was
awaiting a reply. Mr. King requested an additional thirty (30) days to respond
to the demand (see Ex. D, p. 1 attached to Motion). Mr. Terry consented
to the State’s request (see Ex. D, p. 2). By letter dated August
10, 2007, Mr. King responded to Claimant’s demands by objecting to all
three demands. The objection to Demand 1 was that it requests security
information and is not relevant; the objection to Demand 2 was that it was
overbroad and burdensome; and to Demand 3 was that it was not relevant.
Claimant asserts, in his affidavit submitted in support of his motion, that the
documents he seeks do not pose a security issue and that he would consent to an
in camera review of the documents by the Court to verify same.
Defense counsel, in his affirmation in opposition to Claimant’s motion,
states that Defendant is withdrawing its objection to providing
“complaints about the day room security door in N-1 dormitory at Bare Hill
Correctional Facility from the period covering January 20, 2002 through January
31, 2003” (Affirmation in Opposition, ¶ 6). Counsel further asserts
that Defendant will undertake a diligent search for such records and provide
same once found, or, if no such documents are located, Claimant will be provided
with a letter from Bare Hill indicating same. As the State has informed the
Court and Claimant it is withdrawing its objection to Demand 1 and will provide
the requested information if it exists, the motion to compel a response to this
demand is denied as moot.
Claimant’s second demand seeks copies of all repair orders concerning the
door for the period January 20, 2002 through January 31, 2003. Originally, Bare
Hill advised defense counsel that this request was burdensome. Following a
communication with defense counsel, Bare Hill searched for the requested
documents. By letter dated October 4, 2007, Robert Gravel, the Bare Hill
Maintenance Supervisor, states he was asked to search for work orders dating
from January 20, 2002 to January 31, 2003, that he “diligently
searched” the areas of the facility where such documents “would be
kept and the area in which our other work orders, dated back to 1998, are kept,
and have been unsuccessful in locating the above-mentioned time frame”
(see Ex. A attached to Affirmation in Opposition).
It is not disputed that the documents Claimant seeks are relevant to his case.
While “[i]t is well settled that ... a party cannot be compelled to
produce documents which do not exist” (Castillo v Henry Schein,
Inc., 259 AD2d 651, 652 [2d Dept 1999]), if the documents do not exist,
Claimant is entitled to “a detailed statement, made under oath, by an
employee or officer with direct knowledge of the facts as to the past and
present status of the sought documents” (Mercado v St. Andrews Hous.
Dev. Fund Co., Inc., 289 AD2d 148 [1st Dept 2001], quoting Longo v Armor
El. Co., 278 AD2d 127, 129 [1st Dept 2000]; Wilensky v JRB Mktg. &
Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]). The motion to compel a
response to Demand 2 is granted as stated above.
The third demand seeks copies of all repairs and work orders covering the
period January 20, 2002 through January 31, 2003. Defense counsel objects on
the basis that the demand is not relevant to this Claim. The Court agrees with
defense counsel. As worded, this demand seeks copies of all repair and work
orders for Bare Hill for the approximately one-year period. The Court finds
such request to be overbroad, burdensome and not relevant to this Claim. The
motion to compel a response to Demand 3 is denied. The Claimant might wish to
consider narrowing the scope of this demand.
Based upon the foregoing, Claimant’s motion to compel is granted in part
and denied in part. The State is directed to provide the documents requested in
Demands 1 and 2 within forty-five (45) days of the date of filing of this
Decision and Order, or, if no such documents exist, then a detailed statement
shall be provided, made under oath by an employee or officer with direct
knowledge of such information, within the same time period.