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
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.