New York State Court of Claims

New York State Court of Claims

TOWNER v. STATE OF NEW YORK, #2008-040-064, Claim No. 113601, Motion Nos. M-74398, M-74799, M-75177


Pro se
Claimant’s Motion to (1) Strike State’s Answer; (2) Compel production; and (3) for Production of Documents denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-74398, M-74799, M-75177
Cross-motion number(s):

Claimant’s attorney:
James Towner, Pro Se
Defendant’s attorney:
Attorney General of the State of New York
By: Michael W. Friedman, Esq., AAG and Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 7, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Claimant’s motions to: (1) strike Defendant’s answer for failure to comply with a prior Court Decision and Order; (2) compel the production of certain documents; and (3) for the production of certain documents are denied.

This wrongful confinement action accrued on or about June 14, 2006, when Claimant was released from keeplock at Coxsackie Correctional Facility in West Coxsackie, New York (see Towner v State of New York, Ct Cl, Claim No. 113601, Motion No. M-73300, filed September 14, 2007, Sise, P.J. [UID No. 2007-028-574]).

In a previous motion (Towner v State of New York, supra), Claimant sought to discover “the name of the official who, on June 14th, 2006, authorized [Correction Officer (“C.O.”)] Decker of F-2 Company to release [Claimant] from keep-lock status, from June 6th, 2006 thru June 14th 2006,” an individual who was also described as someone who was in the [t]ier [h]earing office on June 13, 2006. Although the Court denied Claimant’s motion on the ground that Claimant had failed to serve Defendant with a discovery demand, Defendant was nevertheless directed to provide Claimant with “the name of the person who spoke with C.O. Decker regarding Claimant’s release from keeplock on June 14, 2006 and the name of the person, if any, assigned to be in the [t]ier [h]earing [o]ffice on June 13, 2006” (id, pp. 2-3).

In response, counsel for Defendant sent Claimant an affidavit of C.O. Douglas Decker, which states that Decker does not recall the name of the person assigned to be in the tier hearing office on June 13, 2006 or the name of the person who authorized him (Decker) to release Claimant on June 14, 2006 (Decker Affidavit, Exhibit A to Affirmation of Michael W. Friedman to Motion No. M-74398).

Motion No. M-74398 seeks to strike Defendant’s answer for failing to comply with the Court’s prior order. Motion Nos. M-74799 and M- 75177 seek to compel the production of log books that Claimant contends would contain the information in question. In his papers, Claimant identifies two officers, McDermott and Shoemaker, one or both of whom, Claimant asserts, would have been present at the tier hearing area on June 13, and he wants to know which of the two had the power to authorize his release and which one actually authorized his release. Claimant contends that the State’s response to the Court’s previous order was not adequate, stating that there should be a record, in the tier hearings logbook, of the name(s) of the officer(s) who were authorized to direct an inmate be released from confinement on the days in question.

In the Court’s view, Defendant’s response to the Decision and Order of Presiding Judge Sise was only partially adequate. When directed to provide the name of the person who spoke to C.O. Decker about releasing Claimant, it was, of course, necessary for Defense counsel to consult the officer and ask who spoke with him. C.O. Decker’s affidavit establishes that he does not recall, so that must be the end of that part of the inquiry. On the other hand, C.O. Decker’s failure to remember does not preclude Defendant from looking at institutional records to determine, if possible, “the name of the person, if any, assigned to be in the [t]ier [h]earing [o]ffice on June 13, 2006.” To satisfy that direction, Defendant should produce either the information from relevant records kept by the prison, or “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” that no such records exist (Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000]; see Orner v Mount Sinai Hosp., 305 AD2d 307, 310 [1st Dept 2003]).

Defense counsel asserts in his affirmation in opposition to Motion No. M-75177 that Claimant has not served a proper discovery demand upon Defendant pursuant to CPLR Article 31 (Affirmation of Michael C. Rizzo, ¶ 5). Claimant is advised that, in order for the Court to compel the Defendant to produce discovery, a demand for such item must be made prior to the motion to compel.

The Court finds that Defendant’s response to Presiding Judge Sise’s previous order was minimally adequate, and, thus, the motion to strike the State’s answer is denied. The two motions seeking the production of documents are denied as moot as no discovery demand was served upon Defendant. However, as Presiding Judge Sise stated in his decision deciding Motion No. M- 73300, in the interest of saving time and needless effort on the part of all concerned, the Court directs Defendant to provide to Claimant and the Court the requested information from relevant records kept by the prison, or a detailed statement of the sort described above, made by an employee, under oath, based on personal knowledge, that no such records exist. This is to be provided within thirty (30) days of the date of filing of this Order. The Court notes that the statement in Mr. Rizzo’s affirmation that “Coxsackie Correctional Facility has caused a search to be made and is unable to locate the log book(s) for the time period sought” by Claimant (Rizzo affirmation, ¶ 8) is insufficient as it is not made by an employee of the correctional facility with personal knowledge.

October 7, 2008
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant’s motions:

Papers Numbered

Notice of Motion (Motion No. M-74398) of James Towner 1

Affidavit of James Towner and annexed Exhibits 2

Affirmation in Opposition (Motion No. M-74398)
of Michael W. Friedman, AAG and annexed Exhibit 3

Reply Affirmation of James Towner 4

Notice of Motion (Motion No. M-74799)
and Letter in support of James Towner 5

Affirmation in Opposition (Motion No. M-74799)
of Michael W. Friedman, AAG 6

Reply Letter of James Towner 7

Reply Affirmation (captioned Motion for
Discovery & Inspection) of James Towner 8

Notice of Motion (Motion No. M-75177) 9

Affirmation in Opposition (Motion No. M-75177)
of Michael C. Rizzo, AAG 10

Filed papers: Claim; Answer; Decision and Order, Claim No. 113601,

Motion No. M-73300 (Ct Cl Sept. 14, 2007), Sise, P.J.