New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2009-010-031, Claim No. 112339, Motion No. M-76711


Claimant’s motion that defendant’s answer be stricken based upon defendant’s failure to provide documents sought in discovery denied (documents destroyed), adverse inference granted.

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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 16, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on claimant’s motion for an Order directing, inter alia, that defendant’s answer be stricken based upon defendant’s failure to provide documents sought in discovery:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.........................1

Attorney’s Affirmation in Opposition, Affidavits and Exhibits...............................2

Attorney’s Reply.......................................................................................................3

Claim No. 112339 alleges that on March 10, 2005 during claimant’s incarceration at Green Haven Correctional Facility (Green Haven), at approximately 7:00 a.m., claimant, who is legally blind, proceeded to the recreational pen unescorted and slipped and fell on a large accumulation of ice and snow in the pen. The Special Housing Unit Log Reports indicate that claimant entered the yard on March 10, 2005 and at 12:04 p.m., medical assistance was called for claimant because he slipped and fell on his back in the yard (Defendant’s Ex. A). On May 13, 2005, a notice of intention was served upon defendant (Claimant’s Motion Ex. 1). On December 5, 2007, claimant served defendant with a Demand to Preserve Essential Records (Claimant’s Motion Ex. 5) and Combined Discovery Demands (Claimant’s Motion Ex 3). The Demand to Preserve Essential Records specifically identified the following forms: Form 2095 (the daily safety report); Form 2097 (the weekly safety report); Form 2098 (the monthly safety report); Form 4065 (the annual Fire and Safety Report); Inmate Accident Log Form 1593. It also identified a videotape[1] of the yard for the date in issue.

Despite defense counsel’s repeated demands for the production of these documents by the New York State Department of Correctional Services (DOCS), the bulk of the records cannot be located and have not been produced (Defendant’s Affirmation, ¶¶ 15-16). Defendant also maintains that an Inmate Injury Report (Log Form 1593) was never prepared by DOCS. With regard to the daily inspection reports, defendant maintains that DOCS customarily retains these reports for 13 months before they are destroyed and that the Demand to Preserve was served after that time period. With regard to the weekly, monthly and annual reports, however, defendant conceded that they are customarily retained for 3 years and that, therefore, these records should have been retained pursuant to claimant’s Demand to Preserve (id. at ¶¶ 13-14). Defense counsel attached the limited number of reports located by DOCS, which includes nine monthly reports for 2004 to 2005, including one made on March 16, 2005 and the annual reports. Defense Counsel also submits the affidavit of Stephen Brandow, Green Haven Correctional Facility Deputy Superintendent of Administration and Chair for Safety and Environmental Control, which notes that the reports do not record any reference to weather related hazards/conditions (id. at ¶16; see Brandow Affidavit Attached to Defendant’s Affirmation in Opposition). Defendant also submits the affidavit of Robert Bingman, former Fire and Safety Officer at Green Haven, which states that the Fire and Safety Reports do not address transient winter weather related conditions or hazards; rather, they address compliance with fire, safety and building code requirements. Therefore, defendant argues that the failure to retain or produce such records does not prejudice claimant in the prosecution of his claim.

The Court finds that, upon the papers presented, claimant’s application is GRANTED to the extent that claimant is entitled to an adverse inference that, had the records which claimant sought in discovery been produced by defendant, they would have been unfavorable to defendant (see Ortega v City of New York, 9 NY3d 69; Ifraimov v Phoenix Indus. Gas, 4 AD3d 332), i.e., they would have indicated that snow and ice existed in the pen on the date in issue. The remaining branch of claimant’s motion is DENIED and the Court will not impose the drastic remedy of striking defendant’s answer because the absence of the records sought has not deprived claimant of the ability to prove his claim by other means, such as the videotape obtained from defendant depicting claimant’s fall in the yard and meteorological reports for the date in issue (see Molinari v Smith, 39 AD3d 607).

It is noted that this is not the first case presented where DOCS has been unable to produce records despite the timely service of a notice of intention. While a Demand to Preserve Essential Records was served upon defendant, in this case, the Court finds that the notice of intention alone was sufficient to put defendant on notice to retain any records which might be relevant to the filed claim. Indeed, each case is decided in its individual circumstances, however, defendant is cautioned that DOCS’ pattern of adhering to a self-imposed timetable of document retention and destruction before discovery is completed on filed claims is not an acceptable explanation for its inability to produce vital records impacting a claim. Moreover, the Court finds that defense counsel’s statements that:
“[t]he mere service of the demand [to Preserve Essential Records], however, does not ensure its immediate communication to the particular employee charged with the maintenance and disposal of the records, or insure the most diligent and thorough search for the records. Some delays and oversights inevitably occur”
(Attorney’s Affirmation at ¶ 21), are essentially a concession that DOCS’ practice is flawed. Perhaps, DOCS should reexamine and extend its timetables from that which has been customary to what is practical and effective, or it may risk the imposition of more drastic sanctions in an appropriate case.

September 16, 2009
White Plains, New York

Judge of the Court of Claims

[1].According to defendant, claimant obtained a copy of the videotape before it was recycled; however defendant is no longer in possession of the videotape and defendant’s request for a copy from claimant has not been fruitful (Defendant’s Ex. C). The tape purportedly shows claimant’s slip and fall.