New York State Court of Claims

New York State Court of Claims

FRANCO v. THE STATE OF NEW YORK, #2008-044-596, Claim No. 115346, Motion No. M-75483


Claimant’s motion to compel disclosure granted in part and denied in part.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim to recover for personal injuries allegedly received when he was attacked by one or more fellow inmates at Elmira Correctional Facility (Elmira). Defendant answered and asserted several affirmative defenses. Claimant now moves to compel disclosure. Defendant opposes the motion. Claimant replies.

Claimant served a Notice of Discovery and Inspection on July 14, 2008, which contains seven demands, lettered A through G. Defendant has provided responses, including objections to some of the demands, in its answering papers to this motion.

Claimant asserts that by failing to timely raise its objections, defendant has waived them, and he further requests that the Court compel defendant to provide the information sought, which he argues is material and necessary for him to prosecute this action.

Pursuant to CPLR 3122 (a), defendant had 20 days in which to respond to the Notice of Discovery and Inspection, and to include any objection – stated with reasonable particularity – to the requested discovery.[1] Having failed to respond with its objections in a timely manner, defendant “may [now] resist the demand only upon the grounds that it seeks privileged material or is palpably improper” (Briand Parenteau, Inc. v Dean Witter Reynolds, 267 AD2d 576, 577 [1999]). “A disclosure request is palpably improper if it seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case” (Titleserv, Inc. v Zenobio, 210 AD2d 314, 315-316 [1994] ).

Because defendant has provided information in its motion papers in response to the demands, the Court will address the sufficiency of those responses. Claimant’s Demand A requests that defendant provide copies of any and all unusual incident reports of assaults which took place over the previous five years, in the area where claimant was attacked – that being the area in front of the Special Housing Unit and the entrance to I-Block. Defendant asserts that the demand is overbroad and unduly burdensome, but has provided a copy of the unusual incident report concerning the assault on claimant.[2] Although Demand A might have been found to be overbroad and unduly burdensome, the demand cannot be resisted on that basis because defendant’s response was untimely. Nevertheless, Unusual Incident Reports typically contain confidential information which may be inappropriate to disclose. Further, the information which is potentially relevant to this claim, that is whether there have been other assaults in the same area, may be obtained by demanding disclosure of a document or documents other than an Unusual Incident Report (see infra, at 4-5). Accordingly, claimant’s motion to compel disclosure is denied with respect to Demand A.

In Demand B, claimant requests any and all “To and From Memorandums [sic]” pertaining to the incident. Even though defendant has claimed that the request is overbroad, defendant has provided “redacted copies of the to-from memoranda pertaining to this incident.” To the extent that any additional “To - From” memorandum exists, the Court directs that defendant provide said document(s) to claimant within 30 days of the filing of this Decision and Order. If no further documents exist, AAG Barbosa is directed to so state, in admissible form. Claimant’s motion to compel disclosure with respect to Demand B is granted to this limited extent.

Demand C seeks any and all confidential informant or witness testimony concerning claimant’s assault and injuries. AAG Barbosa states that “defendant is unaware of any confidential informant or witness regarding the incident,” and also that he “is in the process of further inquiring as to any such source” (Affirmation of AAG Roberto Barbosa, dated September 24, 2008, ¶¶ 9, 17). The Court finds that counsel’s willingness to conduct a further inquiry into the existence of any confidential testimony, and to so advise the Court and claimant is sufficient. Claimant’s motion as it pertains to Demand C is therefore granted to this limited extent.[3]

Claimant is apparently satisfied with both the photographs produced in response to Demand D, and the portions of his Ambulatory Health Record submitted in response to Demand E. Claimant has also conceded that defendant’s objection to Demand F – which requested his medical records from Arnot Ogden Medical Center – is appropriate, and claimant has indicated that he does not need any further documentation concerning his medical treatment. Claimant’s motion with respect to Demands D, E, and F is therefore denied.

Demand G seeks production of any and all unredacted documents generated either during or as a result of the incident in which claimant was attacked. Due to its untimely response, defendant’s objections that said demand is overbroad, unduly burdensome, vague, and ambiguous have been waived. Clearly, to the extent that claimant is seeking unredacted documents which may contain confidential information, such as medical or misbehavior reports, that portion of the demand would be palpably improper. However, because the Court is unaware of what other types of documents may be in existence, the Court cannot address whether any portion of the demand may be appropriate. Accordingly, AAG Barbosa is directed to provide the Court and claimant with a list of the types of documents or reports which are typically generated as a result of an inmate-on-inmate assault, along with a general description of the information contained therein, all within 30 days of the filing of this Decision and Order. Claimant’s motion to compel with respect to this demand is adjourned pending receipt of this additional information.

In conclusion, the Court finds that defendant’s responses to Demands A, D, E and F are appropriate, and claimant’s motion to compel disclosure with respect to these demands is denied. Claimant’s motion to compel disclosure is granted to the limited extent that AAG Barbosa provide any additional “To - From” memorandum concerning this incident to claimant, or otherwise affirm that no further documents satisfying Demand B exist within 30 days of the filing of this Decision and Order. Further, AAG Barbosa is directed to advise the Court and claimant whether his further inquiry revealed the existence of any confidential statement/testimony in response to Demand C, again within 30 days of the filing of this Decision and Order. The motion is adjourned with respect to Demand G, pending receipt by the Court and claimant of information concerning the documents or reports generated as a result of any inmate-on-inmate assault. Said information shall also be provided within 30 days of the filing of this Decision and Order. Upon receipt of said information, the Court will determine whether additional disclosure is required pursuant to this demand.

December 24, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on September 2, 2008; Affidavit of Alejandro Franco sworn to on August 28, 2008, and attachments.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated September 24, 2008, and attached Exhibits A through E.

[1]. In candidly admitting that defendant’s responses were untimely, Assistant Attorney General (AAG) Roberto Barbosa, counsel for defendant, states that the delay was caused by conducting a “good faith inquiry into the existence of confidential witnesses or informants.” The Court notes that it would have been more prudent for defendant to have requested additional time in which to respond.

[2]. Defendant has redacted personal information, such as the identification numbers of the other two inmates
who were found in the same area as claimant.
[3]. The Court notes that the confidential nature of the identity or statement/testimony of any informant or witness would require an in camera review to determine what portion, if any, of said material should be disclosed. Moreover, because there is no dispute that claimant was attacked, and his cause of action is based upon negligent supervision, there is a significant question as to whether the information sought would even be relevant (see Drew v State of New York, Ct Cl, Mar. 22, 2005, Patti, J., Claim No. 107733, Motion No. M-68268, Cross Motion CM-68409 [UID # 2005-013-008], affirmed 31 AD3d 1202 [2006]).