New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2009-032-153, Claim No. 110190, Motion No. M-76739


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:
Shawn Green, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Joseph F. Romani, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
October 13, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim against the State of New York on December 8, 2004, alleging that restraint and deprivation orders were improperly imposed on him, and that his inmate account was charged for a book he ordered but did not receive. Claimant now moves this Court for an order compelling defendant to comply with his discovery demands of March 18, 2009, and for sanctions. Defendant opposes the motion. For the reasons set forth below, the Court denies claimant’s motion to compel.
By document titled “Interrogatories and Discovery to Defendant,” dated March 18, 2009, claimant requested that defendant respond to seven interrogatories. Interrogatory No. 1 requested the identity of the officers assigned to the Special Housing Unit recreation detail in C block on the date of the subject incident. Defendant provided a list of officers in response to the same.

In response to Interrogatory Nos. 2, 4, 5, and 6, which requested documents regarding various policies and procedures, defendant indicated that all DOCS’ directives are available at the facility library with the exception of those classified as confidential or involving security matters. The Court finds defendant’s response to be proper. However, if claimant discovers that copies of certain DOCS’ directives which he seeks are unavailable in the facility's library (except those that are confidential or involve security matters), he should advise defendant of the specific directives and defendant shall provide copies of the same to claimant upon reasonable payment.

Defendant objected to Interrogatory No. 3, which requests that defendant identify “any documents relating to Southport SHU inmates (sic) misconduct that occurred in recreation stairwell, prior to or subsequent to the incident,” and Interrogatory No. 7, which requests that defendant identify “any and all documents relating to the threat against staff, inmates or State property that existed because of claimant subsequent to [the] incident,” on the basis that they are ambiguous, vague, overbroad and irrelevant. The Court agrees. It is well settled that claimant’s use of terms such as “all” and “any and all” in discovery demands constitute an overly burdensome demand for discovery (MacKinnon v MacKinnon, 245 AD2d 690 [3d Dept 1997]). Accordingly, claimant’s motion to compel responses to these demands is denied.
In claimant’s “Interrogatories and Discovery to Defendant,” he demanded the production of eight items from defendant. In defendant’s response, defendant indicated that it would provide copies of the documents requested in Demand No. 1 (Check #17485 – one page), Demand No. 3 (Chronology Entry Sheet for August 18, 2004 and August 23, 2004 – one page), Demand No. 4 (Claimant’s Package Chart Records from January to April 2004 – two pages), and Demand No. 6 (Disciplinary Records for the incident on September 10, 2004 – 7 pages), upon payment of the copies at a rate of $0.25 per page. There is no general provision which requires the State to pay the litigation expenses in claims brought against it and 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 [3d Dept 1991]). Accordingly, the Court finds defendant’s response to Demand Nos. 1, 3, 4, and 6 as proper.

In response to Demand No. 2, which requests commissary receipts and monthly statements for October 2000 and May 2001, defendant indicated that commissary records are only maintained for a maximum of 5 years and the requested records are, therefore, no longer in existence. The Court accepts this response.

Defendant objected to Demand No. 5, which requests “any and all Southport, B block entries relating to dates claimant attended recreation subsequent to incident during his placement on level one at Southport,” and Demand No. 8, which requests “any notes, documents, letters, memoranda, files, records, logs, written communications, etc. concerning threats existing because of claimant subsequent to incident” on the basis that they are ambiguous, vague, overbroad and irrelevant. The Court agrees and denies claimant’s motion to compel responses to the same (see MacKinnon v MacKinnon, 245 AD2d 690 [3d Dept 1997], supra).

In response to Demand No. 7, defendant indicated that, upon information and belief, there are not any records regarding deprivation and restraint orders issued against claimant with respect to the September 10, 2004 incident.
Claimant requested the written depositions of Captain M. Sheahan, Counselor P. Klatt, and Officer D. White. Defendant objected to said written depositions. Pursuant to CPLR 3108, a deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state. In the present case, the testimony is not being taken without the state and defendant has not stipulated to the taking of a deposition on written questions. Accordingly, to the extent claimant’s motion seeks to compel the same, it is denied.
Inasmuch as the Court finds that defendant’s responses to claimant’s “Interrogatories and Discovery to Defendant,” dated March 18, 2009, are proper, the Court denies claimant’s request for sanctions to be imposed against defendant.
Based upon the foregoing, claimant’s Motion to Compel (M-76739) is denied in its entirety.

October 13, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:
1. Claimant’s Notice of Motion, dated May 19, 2009, and Affidavit in Support sworn to by Shawn Green on May 15, 2009, with Exhibits;
2. Affirmation of Joseph F. Romani, AAG, in Opposition, dated June 3, 2009;
3. Reply Affidavit sworn to by Shawn Green on June 5, 2009.
Filed Papers: Claim, filed on December 8, 2004; Order of Hon. Richard E. Sise, Presiding Judge, filed on December 17, 2004; and Verified Answer, filed on December 27, 2004.