New York State Court of Claims

New York State Court of Claims

FAGAN v. THE STATE OF NEW YORK, #2008-042-500, Claim No. 110643, Motion No. M-73733


This matter comes before the court on claimant’s motion to compel disclosure. Claimant filed the motion pro se, but since that time has retained counsel to represent him. Claimant acknowledges that defendant has responded to disclosure, but contends that such disclosure is inadequate or incomplete. The court addresses claimant’s objections to defendant’s disclosure ad seriatim. Claimant’s motion is denied concerning production of injury reports, compelling defendant to reveal in detail how defendant gave both actual and construction notice of the alleged dangerous condition, and denies claimant’s request for an award of sanctions. Claimant’s motion is granted with respect to the production of photographs upon claimant paying for the cost of copies of said photographs.

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:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion to compel disclosure brought by claimant (who appeared pro se at the time the motion was filed). The court has considered the following papers:
1. Notice of Motion, filed July 16, 2007
2. Affidavit of Gregory I. Fagan, claimant, sworn to June 10, 2007 and exhibits appended thereto
3. Defendant’s response to motion, signed by G. Lawrence Dillon, Esq., and dated August 6, 2007
4. Exhibits A - H, annexed to the opposition papers


Defendant opposes the motion and contends that it has responded completely and appropriately to the disclosure demands. While the moving papers are at times hard to decipher, it appears that claimant acknowledges that defendant has responded to disclosure but contends that such disclosure is inadequate or incomplete. In reviewing the defendant’s opposition papers, it appears that the defendant provided additional amended disclosure responses during the pendency of this motion.

The underlying claim alleges, in relevant part, that on January 21, 2005 Gregory Fagan (at the time in issue, an inmate at the Marcy Correctional Facility) was injured due to both the negligence of the facility and its failure to provide prompt treatment following claimant’s initial injury. The claim describes the occurrence as follows:

[t]he place where said injuries were sustained is in the doorway of the compost building of the Marcy Correctional Facility, located on Old River Road, Marcy, New York. At said time and place, claimant, Gregory Fagan, an inmate at said facility, during the course of his work duties, exited the compost building when another inmate operating a Bobcat tractor pinned the door shut with the tractor, causing claimant’s left index finger to become caught in the hatch door, severing part of said finger. Following said incident, claimant was taken to the prison infirmary, where he waited for approximately one-half hour to forty-five minutes, before he was taken to St. Elizabeth Hospital for medical treatment.

For the sake of clarity and brevity, the court will address claimant’s objections to defendant’s disclosure ad seriatim:
  1. Injury reports at the job site known as the "Facility Compost-Pumphouse" for the years 1995 through 2005.

This discovery request from claimant is contained in that portion of his demand titled “Demand for names and addresses of Witnesses” at demand numbered “13" and demands:

Defendants are further required to furnish to claimant all reports, documentation, reports, medical reports, unusual incident reports, photographs of injuries of prior civil litigation for the years 1995 thru 2005, and the final disposition of any claims against said defendants for serious physical injury, including the compost area and outside lawn and grounds crews at the Marcy Correctional Facility.

It appears that defendant did not respond to this discovery demand. However, in opposition to this motion, defense counsel, relying upon Drew v State of New York, UID No. 2005-013-008, Claim No. 107733, Motion No. M-68268, Cross-Motion No. CM-68409, Patti, J., argues that a request for the ten years of records is “overly broad, unspecific, vague, and burdensome”.

The court declines to compel disclosure by defendant to this demand as it is presently worded. The demand is not limited to incidents similar in nature to the one at issue; the time period is overly broad; the geographic parameters of requested disclosure bear no relation to the limited area of the incident; the demand does not limit the requested disclosure to incidents with Bobcats; there is no showing that such broad document disclosure would be either helpful or relevant.

Claimant’s motion to compel defendant’s response to this demand is denied.

  1. Photographs already disclosed are photocopies and therefore not compliant with the disclosure demand.

It is claimant’s contention that the defendant provided photocopies of requested photographs, rather than copies of the photographs and that this fails to comply with the discovery demands.

Defendant’s opposition to the motion pointed out that duplicates of the photographs are available upon request by the claimant to the Inmates Record Office accompanied by payment of the copying fee.

If claimant wishes to demand that copies of the photographs be made by defendant and provided to claimant, the court will grant such demand. However, it is not incumbent upon the defendant to pay for the cost of such copying and the court will require that such copies of photographs only need to be provided to claimant upon claimant’s payment to defendant of the reasonable cost of same (see, Shell v State of New York, 307 AD2d 761, 762 [4th Dept 2003]; Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]).

  1. Defendant has failed to produce all photographs in its possession.
Claimant maintains that defendant has not produced all photographs of the incident, the equipment involved and the location of the incident which defendant has in its possession. Claimant states that he was personally present at the time that some of the photographs were taken by agents of defendant and that defendant is intentionally withholding this material.

In its formal response to the disclosure demand for photographs, defendant stated the following:

Without waiving any objections, and reserving the right to amend the response, the Defendant is unaware of any photographs other than the ones provided by Claimant, for which he already has copies. However, the defendant will provide copies of any photographs in its possession upon acquisition of same.

This response is in fact, not responsive. If defendant has photographs in its possession, then, by definition, it does not need to acquire them. It does, however, need to make a deliberate and concerted effort to transmit the photographs to its counsel. Defendant is directed to make a diligent search of its records and facilities and to produce all photographs at all germane to this incident, the location of the incident, and the instrumentalities of the incident and to provide identifiably clear photocopies of said photographs to claimant’s counsel within 60 days from the date of receipt of this decision. In the event there are no photographs to produce, defendant, within the same time period, shall declare in writing that a diligent search was made of its records and facilities and that no photographs were discovered. Claimant may, upon payment of the reasonable cost, request duplicate copies of the photographs, if any, produced by defendant.

  1. Defendant has not adequately responded to claimant's discovery demands numbered "7" and "8".

As defendant correctly notes, these demands simple parroted defendant’s own demands. The demands seek to compel the defendant to reveal in detail how defendant gave both actual and constructive notice of the alleged dangerous condition and its own negligence to the claimant. Since the defendant denies it was negligent, it cannot give detailed responses setting forth the conditions of its notice to claimant of its own negligence.

Claimant’s motion is denied as to these discovery requests. If claimant seeks to have specific documentary evidence produced, requests for same must be particularized, not simply set forth by way of vague generalized blunderbuss requests.

  1. Defendant has not adequately responded to claimant's discovery demand numbered "12".

This discovery demand is similar to claimant’s discovery demand numbered “13" addressed previously in this decision and the court’s ruling on this demand is the same as that for demand number “13".

While claimant contends that some of these materials are subject to FOIL, this is not a FOIL proceeding. This is a negligence action and in the context of the disclosure in a negligence action, these particular discovery demands are so broad as to be unduly burdensome to the defendant and seek material which is simply not relevant to the claim before this court.

Claimant’s motion to compel is denied as to this discovery request.

Claimant’s moving papers characterize defendant’s response to claimant’s demands as a “willful lack of due diligence” and a “willful neglect” in refusing to respond to certain demands. As a consequence, claimant seeks an award of sanctions against the defendant. The court finds no basis for an award of sanctions and the claimant’s request for same is denied.

March 10, 2008
Utica, New York

Judge of the Court of Claims