New York State Court of Claims

New York State Court of Claims

RAMOS v. THE STATE OF NEW YORK, #2008-044-538, Claim No. 109478, Motion Nos. M-74114, M-74271, M-74707, M-74790


Synopsis


Claimant’s multiple motions to compel discovery granted in part, denied in part.

Case Information

UID:
2008-044-538
Claimant(s):
WILLIAM RAMOS
Claimant short name:
RAMOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109478
Motion number(s):
M-74114, M-74271, M-74707, M-74790
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
WILLIAM RAMOS, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 20, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim seeking recovery for personal injuries allegedly received when he cut himself while using a knife in the kitchen at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted various affirmative defenses. Claimant now moves in four separate motions (Motion Nos. M-74114,

M-74271, M-74707, and M-74790) for discovery.[1] Defendant opposes all four motions. Claimant submits a reply in Motion Nos. M-74114 and M-74271.

Claimant has filed and served various documents which seek much of the same information, and which have caused confusion for both defendant and the Court. On October 12, 2007, claimant filed and thereafter served a handwritten document entitled “Notice of Motion Claim No. # 109478 . . .C.P.L.R. # 3101 (A)” which was assigned Motion No. M-74114. In Motion No. M-74114, claimant asserts that he is in need of seven specific items as follows: 1) the incident report of May 14, 2005;[2] 2) the Food Service Manual given to inmates assigned to the kitchen as food service workers; 3) the Medical Examination Report which originally authorized claimant to be assigned to the kitchen; 4) the authorization and approval form signed by the Medical Health Director; 5) the authorization signed by the Medical Health Director which gave claimant clearance to be assigned to the kitchen as a food service worker; 6) the Mess Hall directive; and 7) photographs depicting the injury to claimant’s right hand.

On November 1, 2007, claimant filed and thereafter served a handwritten document entitled “Notice of Motion for Discovery and inspection Pursuant to C.P.L.R. Section # 3120 (A) Claim No.# 109478” which was assigned Motion No. M-74271.[3] In that motion, claimant requests that defendant produce five documents as follows: 1) the incident report of May 19, 2004; 2) the photographs of claimant’s injuries; 3) page 105, tasks 3 and 4 of Mess Hall Directive #4310; 4) Employee’s Manual sections 13.1, 13.3, and 13.4; and 5) the clearance order issued by the facility’s Health Service Director which authorized claimant to be assigned to the mess hall and kitchen.

Claimant also apparently served defendant with an undated typewritten “NOTION [sic] FOR DISCOVERY AND INSPECTION PURSUANT TO C.P.L.R. SECTION # 3120 (A) CLAIM No. 109478” (Supplementary Affirmation in Opposition of Assistant Attorney General [AAG] Joseph F. Romani, dated December 17, 2007, Exhibit A).[4] Shortly thereafter, the Clerk of the Court advised the parties that Motion No. M-74114 had been assigned to the Court’s November 14, 2007 motion calendar (Supplementary Affirmation in Opposition of AAG Joseph F. Romani dated December 17, 2007, Exhibit C). Based upon that notification, AAG Romani inadvertently believed that the October Demand was to be treated as Motion No. M-74114, and he submitted an Affirmation in Opposition thereto dated November 1, 2007. Simultaneously with that Affirmation in Opposition, AAG Romani served claimant with a response to the documents requested in the October Demand. After discovering that the October Demand was not, in fact, Motion No. M-74114, AAG Romani responded to Motion No. M-74114 with a Supplementary Affirmation in Opposition dated December 17, 2007.

To add to the confusion, claimant inexplicably asserts in his reply dated January 29, 2008 that he has not submitted any motion to the Court, and specifically states that AAG Romani “has taken it upon himself to submit to this Court and the [c]laimant identical motions” apparently designated as Motion No. M-74114. Claimant also states that Motion No. M-74271 is “mainly a notice of motion seeking discovery and inspection pursuant to [CPLR] 3120 (A) [rather than] a motion to compel discovery.”

It is apparent that claimant has confused the significance of making a motion with serving a notice or demand for discovery. A motion, typically made by filing and serving a notice of motion and supporting papers, is an application requesting some type of relief from the Court (see generally Siegel, NY Prac § 243, at 409 [4th ed] [emphasis supplied]). However, a notice or demand for discovery is addressed to the opposing party and seeks disclosure pursuant to CPLR article 31. Claimant is advised that he should pursue discovery directly from defendant through the devices authorized in CPLR article 31, rather than making unnecessary motions requesting disclosure in the first instance. Claimant is also advised to refrain from making multiple motions, on various different return dates, for the identical relief.

Further, the Court notes that claimant has not provided an affidavit in support of any of these motions as required by CPLR 2214 and the Uniform Rules for the Court of Claims § 206.8 (a) (see 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.02; see also Pettus v State of New York, Ct Cl, Mar. 26, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72699). However, the Court will not deny the motions solely on this procedural basis, given the information contained in the notices of motion and attached written arguments. The Court will now address the four motions individually.
MOTION NO. M-74271
As the Court stated previously in this Decision and Order, the documents requested in Motion No. M-74271 are nearly identical to those requested in the October Demand. Although claimant has indicated that Motion No. M-74271 is not a motion to compel, defendant has responded to this motion, and the Court will therefore address the adequacy of the response.[5] Defendant informed claimant that the incident report (Inmate Injury Report) and Sections 13.1, 13.3 and 13.4 of the Employees’ Manual (Item Nos. 1 and 4) are each one page, and that Task #3, Task #4, and page 105 of the Mess Hall Directive (Item No. 3) cumulatively consist of four pages. Defendant also notified claimant that the total reproduction cost for those six pages is $1.50.[6] The Court finds that these responses are adequate. With respect to claimant’s request in Item No. 2 for the photographs of his injury, defendant agreed to provide any photographs at the time of trial. The Court finds that this response is not sufficient. Defendant is directed to determine whether photographs of claimant’s injured hand exist, and if so, advise claimant of the cost for their reproduction, within 40 days of the date of filing of this Decision and Order.

Defendant’s response to Item No. 5 - which sought a clearance order by the Facility Health Service Director that authorized claimant to be assigned to the kitchen area - was that “[u]pon information and belief,” there were no certificates of training in claimant’s guidance folder. The Court finds that defendant’s response to Item No. 5 is also insufficient. Defendant is directed to clarify said response by ascertaining whether there is any document issued by the Facility Health Service Director (whether in claimant’s “guidance folder” or his medical record) that authorized claimant to be assigned to the kitchen area as a food service worker, and which might be considered a “clearance order.” Counsel for defendant shall inform claimant whether any such document exists and, if so, set forth the cost for its reproduction. Accordingly, Motion No. M-74271 is granted solely to the extent that defendant is directed to determine whether photographs of claimant’s injury exist, and to clarify its response to Item No. 5.

MOTION NO. M-74114
Defendant has taken the position that its response to the October Demand and its willingness to provide certain other documents at the time of trial satisfies claimant’s demands for disclosure contained in this motion, and the Court will therefore address the sufficiency of defendant’s responses. To the extent that Item No. 1 of this motion seeks the incident report for claimant’s injury, it is identical to Item No. 1 in the October Demand.[7] The Court has previously found that defendant’s response to this demand was adequate (see supra, at 4-5). With respect to claimant’s demands for the Food Service Manual (Item No. 2) and the Medical Examination Report which allegedly authorized claimant to be assigned to the kitchen area as a food service worker (Item No. 3), defendant’s representation - that those items (if they exist) will be provided at the time of trial - is insufficient. Because these documents might be necessary for claimant to make a prima facie showing of defendant’s alleged negligence, defendant is directed to determine if such items exist, and if so, to inform claimant of the cost for their reproduction within 40 days of the date of filing of this Decision and Order.

Item No. 4 seeks the authorization and approval form signed by the Medical Health Director employed on May 14, 2005, and Item No. 5 seeks the authorization and approval form signed by the Medical Health Director employed on May 14, 2005 which gave claimant medical clearance to be assigned in the kitchen area as a food service worker. It is apparent that these requests are encompassed by claimant’s demand for a “clearance order” in Item No. 5 of the October Demand. As the Court stated previously in this Decision and Order (see supra, at 5), defendant is directed to ascertain whether there is any document that may constitute an authorization (“clearance order”) for claimant’s assignment as a food service worker which was issued by the Facility Health Service Director, and if so, to advise claimant of the cost to provide a copy of said document, again within 40 days of the date of filing of this Decision and Order.

Defendant has adequately responded to Item No. 6 seeking the Mess Hall Directive, which is identical to Item No. 4. Item No. 7, which seeks photographs of claimant’s injuries, is identical to No. 2 of the October Demand, for which defendant has been directed to determine whether the photographs exist, and if so, the cost for their reproduction (see supra, at 5). Claimant’s motion is granted to the extent that defendant shall ascertain whether there are documents which satisfy claimant’s request for the Food Service Manual, the Medical Examination Report, and any forms signed by the Medical Health Director which authorize claimant to be assigned as a food service worker.
MOTION NOS. M-74707 AND
M-74790
In his third and fourth motions, claimant appears to argue that defendant’s responses are not in compliance with required discovery procedures.[8] In Motion No. M-74707, claimant specifically requests that the Court direct “defendant . . . to produce and provide [him] with copies of all said requested documents [as] stated in the motion seeking discovery and inspection . . . dated the 22nd day of December, 2004.” In Motion No. M-74790, claimant again states that he is still in need of the obtaining the documents requested in his notice of motion dated December 22, 2004. It appears that in both motions, claimant is referring to a “NOTION [sic] FOR DISCOVERY AND INSPECTION” which was filed with the Court on September 22, 2004, and which requested that certain items be produced by December 22, 2004. That document is in essence a demand for production of the identical documents sought in the October Demand and Motion No. M-74271. Because the Court has already addressed the sufficiency of defendant’s responses in this Decision and Order (see supra, at 4-5), both Motion Nos. M-74707 and M-74790 are denied as moot.

In conclusion, Motion No. M-74271 is granted to the extent that defendant is directed to advise claimant whether photographs of his injury exist and, if so, advise him of the cost for their reproduction in response to Item No. 2, and to clarify its response to Item No. 5. Motion No.

M-74114 is granted to the extent that defendant is directed to ascertain whether any documents exist which may satisfy claimant’s demands for Item Nos. 2, 3, 4 and 5 of that motion. All of defendant’s responses shall be provided to claimant and filed with the Clerk of the Court within 40 days of the date of filing of this Decision and Order. The discovery requests in Motion Nos. M-74707 and M-74790 are repetitive of items sought in the October Demand and Motion No.

M-74271, and have previously been addressed in this Decision and Order. Accordingly, Motion Nos. M-74707 and M-74790 are denied as moot.


May 20, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims



The following papers were read on claimant’s motions:

M-74114

1) Notice of Motion filed on October 12, 2007, and attached exhibit.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated November 1, 2007, and attached Exhibit A.

3) Supplementary Affirmation in Opposition of Joseph F. Romani, AAG, dated December 17, 2007, and attached Exhibits A through D.


4) Claimant’s unsworn reply (in letter format) dated January 29, 2008.

M-74271

5) Notice of Motion filed on November 1, 2007.

6) Affirmation in Opposition of Joseph F. Romani, AAG, dated December 17, 2007, and attached Exhibits A through C.


7) Claimant’s unsworn reply (in letter format) dated January 29, 2008.

M-74707
8) “Notice of Motion” (document untitled) filed on March 19, 2008, and attachment.


9) Affirmation in Opposition of Joseph F. Romani, AAG, dated April 21, 2008.


M-74790

10) “Notice of Motion” (document untitled) filed on April 4, 2008.


11) Affirmation in Opposition of Joseph F. Romani, AAG, dated April 21, 2008.


Filed papers: Claim filed on June 14, 2004; Verified Answer filed on July 23, 2004.


[1]. In all four motions, claimant initially requests that he receive an order permitting him to submit the entitled motions. It is unclear whether claimant incorrectly believes that he must obtain the Court’s permission before making a motion in this claim or whether his motions are simply inartfully drafted.
[2]. The Court notes that in the claim, claimant alleges that he was injured on May 19, 2004.
[3]. The Court will refer to this document and its attachments as Motion No. M-74271.

[4]. This document was received by the Attorney General’s Office on October 19, 2007, and will be referred to as the October Demand. The items sought in the October Demand include all items sought in Motion No.
M-74271, with the addition of pages 78, 91, and 98 of the Mess Hall Directive.
[5]. Defendant has also responded to the October Demand with virtually identical responses. However, the sufficiency of those responses (Defendant’s Response to Demand for Discovery and Inspection, Affirmation in Opposition of AAG Joseph F. Romani dated December 17, 2007, Exhibit A) is addressed in the discussion of Motion No. M-74114, infra at 6-7).
[6]. Claimant is advised that the State has the right to require claimant to pay reasonable photocopying costs of demanded discovery documents (Gittens v State of New York, 175 AD2d 530 [1991]).
[7]. Although claimant requests the incident report for May 14, 2005, it appears relatively clear that he seeks the incident report for his injury which allegedly occurred on May 19, 2004 (see Claim No. 109478).
[8]. Claimant also inappropriately addresses the merits of this claim. While claimant’s argument that defendant is in violation of both its Health Service Policy and Employees’ Manuals might be appropriate at the time of trial, it is not properly advanced within these two motions for discovery.