New York State Court of Claims

New York State Court of Claims

KOEHL v. THE STATE OF NEW YORK, #2008-041-032, Claim No. 114946, Motion No. M-75379


Claimant’s application for an order compelling production of documents is granted to the extent that defendant is directed to disclose any further documents in its possession which are responsive to claimant’s request for documents and claimant’s request for sanctions is 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):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 17, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Clinton Correctional Facility, requests an order “compelling disclosure and sanctions for repeatedly disobeying disclosure request and notice of examination before trial.” This claim alleging dental and medical malpractice, violation of religious rights and retaliatory filing of misbehavior reports and refusal to file grievances, was commenced on March 7, 2008. Defendant filed its answer on April 9, 2008.

On April 25, 2008, claimant requested that defendant disclose:
“[A]ll my grievances, decisions, and appeals, including any internal & external investigative reports from 6.1.07 thru present. Also, since this case involves the callous and deliberate denial of medical and dental care, please disclose all my medical and dental records and x-rays, including any reports regardless of their source.

I also request access to all documents and recordings, including any internal and external investigative reports, complaints, etc., regarding infractions issued to me on: 6.16.07 (by Stephen LuCuyer), 9.28.07 (by Christina Oshier), 12.27.07 (by J. Varin), and 1.31.08 (by M. Coryer).”
On May 19, 2008, before defendant’s time to provide the requested disclosure had expired (see CPLR §§ 3120 [2], 2103 [b] [2]), claimant sent a letter to defendant’s attorney asking why defendant had not complied with his demand. On June 12, 2008, claimant sent defendant’s attorney another letter regarding the demand for documents and records, stating:
“It more than just appears that you think I am too much of a scumbag to afford me the common courtesy of a response. Or, are a corrupt individual who will stoop to any illegal means to protect your fellow government agents. Something similar to what the Taliban is all about.

Further, on May 19, 2008, I sent you my ‘NOTICE OF EXAMINATION BEFORE TRIAL.’ I want to depose several of the animals bastards you willingly represent.”
Claimant’s notice of examination before trial sought the testimony of eighteen (18) alleged witnesses.

On July 23, 2008, claimant again requested depositions of the eighteen (18) purported witnesses. Claimant’s motion to compel disclosure was served on August 8, 2008.

On August 15, 2008, defendant provided a response to claimant’s “voluminous discovery” which, according to defendant’s attorney, “took sometime to accumulate as the discovery response measured over 7 inches in thickness.” Defendant also agreed to the production of “relevant witnesses to an examination before trial.” In his cover letter forwarding the discovery response, defendant’s attorney asked that claimant “refrain from using vulgar language in any further correspondence as it is not appropriate.”

In his reply, claimant alleges that defendant’s response to his demands omitted several documents which claimant alleges exist. The claimant’s motion to compel disclosure is granted to the extent that defendant shall disclose the documents identified by claimant if said documents exist.

Claimant also states, in a footnote, that many of the document copies provided by defendant in its response were illegible. Defendant shall again provide copies of documents previously provided to claimant, ensuring that the copies provided are legible.

Claimant’s request for sanctions is denied and claimant is advised that continued use of vexatious or abusive language in pursuing this litigation could support sanctions against claimant (see Nagel v Gammerman, 293 AD2d 347 [1st Dept 2002]). Claimant is further advised that frivolous conduct under the sanctions rule (22 NYCRR 130-1.1) includes the making of a frivolous motion for costs or sanctions under the regulation.

September 17, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion, filed August 14, 2008;
  2. Claimant’s Affidavit, sworn to August 8, 2008, and annexed exhibits;
  3. Affidavit of Michael C. Rizzo, sworn to August 20, 2008, and annexed exhibits;
  4. Claimant’s Reply Affidavit, unsworn, and annexed exhibits.