For the reasons set forth below, Claimant’s motion to compel the State to
produce original records is denied.
Claimant alleges that during May and June, 2007, he was housed in a Special
Housing Unit (hereinafter SHU) at Upstate Correctional Facility (hereinafter
Upstate) located in Malone, New York. He states that he was placed on a
restricted diet, apparently as a disciplinary measure, pursuant to Department of
Correctional Services Directive 4933. He asserts that he advised several
members of the medical staff at Upstate on various dates that the restricted
diet caused him to suffer stomach pains and diarrhea and that they refused to
discontinue the restricted diet.
On September 10, 2007, Claimant mailed a Disclosure Request for Production of
Documents to Defendant. The disclosure demand seeks: (1) copies of
Upstate’s restricted diet medical logs for Claimant from May through
August 2007; (2) copies of the SHU log book for visitors to the 11 Building
Housing Unit for May 14, 2007 from 7:00 a.m. through 1:00 p.m.; (3) copies of
three specified inmate grievances filed by Claimant; (4) copies of two specified
inmate misbehavior reports issued to Claimant; (5) a copy of the
Superintendent’s Hearing disposition regarding a June 1, 2007 hearing; and
(6) a copy of the May 31, 2007 restricted diet approval by Physician’s
Assistant Johnston regarding Claimant.
On September 26, 2007, Defendant served a Response to Claimant’s Request
for Production of Documents. Defendant objected to Demands (1) and (2) thereof
as vague, ambiguous and “difficult to determine what specifically claimant
is seeking. Non classified documents can be inspected by making a written
request to the inmate records coordinator” (Response to Claimant’s
Request for Production of Documents, ¶ 1). With respect to
Claimant’s Demands (3), (4), (5) and (6), it was Defendant’s
position that the grievances were already in Claimant’s possession and
that they could be inspected “by making a written request to the inmate
records coordinator at the facility where you are housed” (Response to
Claimant’s Request for Production of Documents, ¶ 3).
In his affirmation submitted in support of his motion, Claimant asserts that,
in order to sustain his cause of action, he needs to have original records
produced in Court (Johnson Affirmation, ¶ 4).
Defense counsel repeats in his Affirmation in Opposition to Claimant’s
motion, dated November 16, 2007, that Claimant is not entitled to any original
documents and that he was advised in the State’s discovery response that
he could inspect non-classified documents as well as his grievances at any time
upon written request to the inmate records coordinator at his facility
(see Affirmation in Opposition, ¶¶ 3, 4).
The Court notes that Claimant does not object to the State’s responses
that he contact the inmate records coordinator at his facility to review
non-classified documents and his grievances. Rather, with respect to each
document, he asserts that he needs, and thus seeks, originals, not copies of
CPLR 4518(c), which relates to hospital, library and government records,
provides that if an employee charged with maintaining the record provides a
certification as to the authenticity of the record, and the record was made in
the regular course of business and it was the regular course of the business to
make a record of this type, and the record was made at or about the time of the
occurrence of the event recorded, an original document need not be submitted at
trial (Alexander, Practice Commentaries, McKinney’s Cons. Laws of NY, Book
7B, CPLR C 4518:10). Thus, Claimant’s motion to compel the production of
original documents is denied.