New York State Court of Claims

New York State Court of Claims

TERRY v. STATE OF NEW YORK, #2008-040-040, Claim No. 107908, Motion No. M-74928


Synopsis


Claimant’s motion opposing Defendant’s response to discovery demand denied.

Case Information

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

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107908
Motion number(s):
M-74928
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
John A. 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:
June 20, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Claimant’s motion in opposition to Defendant’s response to Demand for Discovery is denied.

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 M-74190).

Claimant previously moved to compel the State to respond. By Decision and Order dated January 3, 2008 (Terry v State of New York, Claim No. 107908, Motion No. M-74190, UID No. 2008-040-001, McCarthy, J.), the Court directed Defendant to provide responses to demands 1 and 2 within forty-five days of the date of filing of the Decision and Order, or, if no such documents exist, then a detailed statement was to be provided, made under oath by an employee or officer with direct knowledge of such information, within the same time period.

On March 20, 2008, Defendant served a Supplemental Response to Claimant’s Demand for Discovery. The Supplemental Response was filed with the Clerk of the Court on March 21, 2008. The State submitted sworn affidavits from Bare Hill Inmate Records Coordinator Sherry LeClair and Bare Hill Maintenance Supervisor Robert Gravel. Ms. LeClair avers that Bare Hill did not maintain a Database or Log Book containing records of inmate complaints for the period January 20, 2002 through January 31, 2003. Therefore, she states there are no records to provide regarding inmate complaints about the N-1 Day Room security door during that period. She further avers that the Grievance Department keeps filed grievances but “only the current year and three prior years ... per NYSDOCS Directives.” Mr. Gravel avers that: he made a diligent search for work orders dating from January 20, 2002 to January 31, 2003; that there are other work orders, dated back to 1998; and he has “been unsuccessful in locating [work orders for] the above-mentioned [time frame].”

Claimant objects to these responses, finding it incredible that Defendant could not find the grievances and work orders relating to the N-1 Day Room security door.

As the Court stated in its above-referenced Decision and Order determining Claimant’s motion to compel, “ ‘[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])” (Terry v State of New York, Claim No. 107908, Motion No. M-74190, UID No. 2008-040-001, McCarthy, J., slip opinion p. 3).

In this instance, Defendant avers the requested documents do not exist and has provided the required statements made under oath. While Claimant may be unhappy with the result, Defendant has complied with this Court’s order and existing case law. Therefore, Claimant’s motion is denied.



June 20, 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 in Opposition to Defendant’s Response to Demand for Discovery:

Papers Numbered
Notice of Motion & Affidavit in Support 1
Letter to Court from Assistant Attorney General 2


Filed Papers: Claim, Answer, Supplemental Response to Claimant’s Demand for Discovery