|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JOHNATHAN JOHNSON, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 2, 2009|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion to compel
1,2 Notice of Motion to Compel Disclosure; Claimant's Affidavit in Support of Motion by Johnathan Johnson, Claimant
3 Affirmation in Opposition to Motion to Compel Discovery and Inspection by Jeane L. Strickland Smith, Assistant Attorney General, and attached papers
4-7 Filed papers: Claim, Answer, Claimant's Disclosure Request for Production of Documents filed April 13, 2009; Claimant's Disclosure Request for Production of Documents filed July 24, 2009
Johnathan Johnson alleges in claim number 116468 that on and between January 16, 2009 and January 28, 2009 there was no heat or hot water in the special housing unit [SHU] of Downstate Correctional Facility where he was housed. He further alleges that he, as well as fellow inmates Lester Jones and Jason Bottari, were all denied sick call during the same time period, and all suffered physical and emotional injury as a result. It is also alleged that no mailboxes were readily available, nor were there headphones, purportedly required by facility directives.
In a disclosure request filed in the Office of the Chief Clerk of the Court of Claims on April 13, 2009, claimant sought production of nine (9) listed items. An affidavit of service appended to the April request attests to service upon the defendant on or about April 6, 2009. An additional disclosure request filed in the Office of the Chief Clerk of the Court of Claims on July 24, 2009, seeks production of seven (7) listed items. An affidavit of service appended to this July request attests to service upon the defendant on or about July 6, 2009.
The present motion seeks to compel disclosure, but does not attach the demand at issue although such is required. Although the motion is thus insufficient on its face, defendant has nonetheless responded to the July requests, based upon the fact that the responses are to seven (7) requests, and further indicates that defendant is producing those documents responsive to "reasonable discovery demands." [Affirmation in Opposition to Motion to Compel Discovery and Inspection by Jeane L. Strickland Smith, Assistant Attorney General, ¶2]. There is no indication of a response to the nine (9) April requests.
Civil Practice Law and Rules §3101, setting forth the scope of disclosure in a civil case and applicable in the Court of Claims [See Court of Claims Act §9(9)], provides in pertinent part that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . ."
When a party fails to respond in some fashion to a demand, the other party may make a motion to compel such as this one. Civil Practice Law and Rules §§3124, 3126. The party making the motion should append a copy of the demand at issue. Notably, disclosure demands - which are by nature documents served on another party - are required to be filed with the Chief Clerk of the Court of Claims. See 22 NYCRR §206.5(c). Similarly, responses to disclosure should be filed with the Chief Clerk as well.
With regard to the July discovery requests, defendant has now responded and included documents that are available, reserving the right to supplement its response in the event additional information becomes available. Although a Court may impose sanctions for a party's willful failure to disclose information that a Court finds should have been disclosed, or for a failure to obey an order to disclose here, the State has not refused to obey a court order, as there is no order extant directing disclosure. See Civil Practice Law and Rules§ §3124, 3126. Additionally, the State has now provided the information requested or responded with reasons why such requests are overbroad, rendering the present motion moot with regard to the July demand.
With regard to the April 2009 requests, it is unclear if they have indeed been received by defendant. If they have, then defendant should respond to claimant in writing with either the documents requested, or reasons why same may not be produced, within thirty (30) days of the filing date of this decision and order. If the claimant's nine (9) April requests have not been received, then defendant should advise the claimant and the Court in writing within the same time frame, and claimant should then serve same on defendant and file proof of service.
Accordingly, based on the foregoing, claimant's motion to compel discovery is denied in part and granted in part.
November 2, 2009
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims