New York State Court of Claims

New York State Court of Claims

TERRY v. THE STATE OF NEW YORK, #2008-040-001, Claim No. 107908, Motion No. M-74190


Synopsis


Prisoner pro se – Motion to compel discovery. Granted in part and denied in part.

Case Information

UID:
2008-040-001
Claimant(s):
JOHN TERRY
Claimant short name:
TERRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107908
Motion number(s):
M-74190
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
John Terry, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 3, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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.


January 3, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Claimant’s motion to compel disclosure:

Papers Numbered


Notice of Motion, Affidavit in Support
and Exhibits Attached 1


Affirmation in Opposition
and Exhibit Attached 2


Filed Papers: Claim, Answer