New York State Court of Claims

New York State Court of Claims

KOTLER v. THE STATE OF NEW YORK, #2009-038-539, Claim No. 113630, Motion No. M-75992


Claimant’s motion to compel production of documents and items on claim for alleged C.O. on inmate assault granted in part and denied in part. Defendant’s objections to breadth and relevancy of demands waived by defendant’s failure to raise those objections within 20 days (see CPLR 3122[a]). File of the Inspector General to be submitted for in camera review, but motion to compel production of Inspector General’s reports with respect to other incidents denied as not relevant. Remaining items to be produced, but, in light of institutional nature of claim and attendant security concerns, defendant may move for a protective order

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 6, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim filed by an individual incarcerated in a State correctional facility asserts causes of action for personal injuries incurred during two alleged physical assaults upon claimant by employees of the Department of Correctional Services (DOCS), and for the negligent bailment of claimant’s personal property. Claimant moves pursuant to CPLR 3124 to compel defendant to comply with his discovery demands. By a discovery demand dated September 10, 2008, claimant requested production of documents set forth in 39 enumerated requests. Defendant did not respond to the demand, and by letter dated November 9, 2008, claimant requested that defendant comply with the demand. When defendant did not produce any discovery, claimant filed the instant motion, prompting defendant to respond to his discovery demand, which was filed with the Clerk of the Court of Claims on January 8, 2009. Defendant opposes the motion to compel on the ground that it is now moot. Claimant responds that his motion is not moot because defendant’s disclosure is incomplete. Claimant acknowledges that certain of his requests have been satisfied by defendant’s response, and thus, those requests will not be addressed in this decision.[1] In addition, there are two requests (Numbers 5 and 6) that defendant states it “will disclose upon further discovery,” and claimant states that he will await that response (see Kotler Affidavit in Reply, ¶¶ 5, 6).

For many of the claimant’s demands – including those which defendant refuses to answer as well as some for which it produces information – defendant’s response recites the boilerplate objection that the demands are “overly broad, unduly burdensome and seek[] information not relevant to this claim” (see Defendant’s Response to Discovery Demands, Numbers 2, 3, 4, 7, 8, 9, 10, 11, 22, 23, 24, 26, 27, 28, 29, 38). However, defendant’s failure to raise these objections within 20 days of service of the demands (see CPLR 3122 [a]) “foreclose[s] inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper” (Fausto v City of New York, 17 AD3d 520, 522 [2d Dept 2005]; see Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]; Griffith v State of New York, # 2007-015-173, Claim No. 110936, Motion No. M-72837, Collins, J. [Apr. 4, 2007]).

By his request Number 1, claimant demands production of the Inspector General’s file with respect to the incident involving claimant. Defendant objects to this demand on the ground that the documents sought are privileged. Claimant responds that defendant has failed to make the showing of the potential for harm that would flow from disclosure that is required of a party opposing disclosure (see Cirale v 80 Pine St. Corp., 35 NY2d 113, 119 [1974]). Generally, a governmental party opposing disclosure must submit to the Court at least “[a] description of the material sought, the purpose for which it was gathered and other similar considerations” (id.). However, the Court is well aware of the nature of the types of materials contained in an Inspector General’s file that has been compiled in the context of an investigation of alleged assaultive conduct by a correction officer. Moreover, “the State’s interest in maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context” (Lowrance v State of New York, 185 AD2d 268, 269 [2d Dept 1992]) is manifest. “The controlling precedent as stated in Lowrance v State of New York, supra, where an inmate seeking access [to a file of the Inspector General] is still incarcerated, is to prohibit such disclosure given the policy considerations behind the creation of the Office of the Inspector General, as well as the security interests of a given correctional facility” (S. v State of New York, UID # 2008-030-549, Claim No. 107224, Motion No. M-74493, Scuccimarra, J. [Aug. 8, 2008] [citations omitted]). Claimant, however, alternatively requests in camera review of the files to determine which portion of the files should be disclosed, a procedure that has been utilized by this Court in similar circumstances (see Davis v State of New York, UID # 2008-032-128, Claim No. 114692, Motion No. M-75227, Hard, J. [Dec. 16, 2008]). Accordingly, the Court will conduct in camera review of the Investigator General’s report regarding the alleged incident involving claimant on May 2, 2006.[2]

Claimant’s request Number 22 seeks production of the Inspector General’s reports with respect to any other incidents of alleged assaultive behavior by correction officers upon any inmates at Franklin Correctional Facility (CF) that occurred during 2006. Defendant again asserts the qualified public interest privilege (see Response to Discovery Demands, ¶ 22). Claimant does not specifically address this objection, but argues that these reports are relevant as “[t]he regular assaultive behavior of staff at [Franklin] CF is at issue” (Kotler Affidavit in Reply, ¶ 22). However, evidence of misconduct on a previous occasion is generally not relevant to whether the same misconduct occurred on a subsequent occasion (see Matter of Brandon, 55 NY2d 206, 210-211 [1982]; Medina v State of New York, UID # 2004-032-045, Claim No. 106664, Motion No. M-68123, Hard, J. [June 14, 2004]). Moreover, the claim does not state a cause of action based upon whether defendant “failed to take any preventative measures once the pattern [of alleged assaultive behavior] became evident” (Kotler Affidavit in Reply, ¶ 22), and thus, the reports of the Investigator General with respect to other incidents are not relevant to this claim. Inasmuch as production of an Inspector General’s report may be denied if the report is not relevant to the issues being litigated (see People v Diaz, 223 AD2d 469 [1st Dept 1996], lv denied 87 NY2d 1019 [1996]; Parker v State of New York, UID # 2003-032-081, Claim No. 105753, Motion Nos. M-66789, CM-66854, Hard, J. [Aug. 20, 2003]), defendant’s objection to demand Number 22 on the ground of privilege will be sustained.

Demand Numbers 19 and 20 seek copies of claimant’s medical records and x-rays related to the incident on May 2, 2006 and continuing through November 2, 2006. In addition to documentary medical records that claimant agrees to obtain through the Inmate Record Coordinator at Wyoming Correctional Facility (see Defendant’s Response to Discovery Demands, Numbers 19-20; Kotler Affidavit in Reply, Numbers 19-20) claimant seeks x-rays that he contends are maintained at Franklin and Upstate Correctional Facilities. Upon claimant’s payment of appropriate fees, defendant shall produce copies of the x-rays requested by claimant.

Defendant has refused to produce specifically described photographs of the area where claimant was allegedly assaulted “just inside the front entrance of the Infirmary at [Franklin] CF” (Kotler Affidavit, Exhibit A, Number 25) on the grounds that defendant does not have such photographs and that it will not take photographs at claimant’s request. Claimant responds that such photographs are essential to his case, and clearly, he lacks the ability to obtain such photographs without defendant taking them. Absent a claim of privilege or demonstrated security concerns, defendant will be directed to take the specified photographs and produce them to claimant upon claimant’s payment of an appropriate fee. In the alternative, defendant may provide claimant and/or an agent of claimant with access to the area so that the photographs requested in Number 25 may be taken.[3]
Claimant essentially asserts that defendant’s responses to his remaining demands (Numbers 2, 3, 4, 7, 8, 9, 10, 11, 13, 14, 15, 16, 18, 21, 23, 24, 26, 28, 29, 30, 34, 36, 38 and 39) are unresponsive or incomplete, and he specifically identifies the omission(s) in each item (see generally Kotler Affidavit in Reply). Upon review of defendant’s production and claimant’s affidavit, the Court agrees, and absent a motion for a protective order as discussed infra, claimant’s motion to compel will be granted with respect to these items. However, in light of the institutional nature of this claim and the potential security issues that may be attendant to some of the information sought, defendant will be given the opportunity to request a protective order addressed to particular demands, specifying the particular privilege asserted and setting forth the factual and legal basis for invocation of said privilege. Accordingly, it is
ORDERED, that Motion No. M-75992 is GRANTED IN PART, and defendant is hereby directed to submit for in camera review the file of the Inspector General as set forth in footnote 2 of this Decision and Order, and it is further
ORDERED, that defendant is directed to produce copies of claimant’s x-rays as requested by claimant’s discovery request Number 20, subject to claimant’s payment of appropriate fees, and it is further
ORDERED, that defendant is directed to take and produce photographs as requested by claimant’s discovery request Number 25, subject to claimant’s payment of appropriate fees, or to provide claimant and/or claimant’s agent with access to the area described in discovery request Number 25 and to permit such photographs to be taken, subject to reasonable time, date and manner restrictions to maintain institutional security, and it is further
ORDERED, that defendant is directed to produce full and complete responses to claimant’s discovery requests Numbers 2, 3, 4, 7, 8, 9, 10, 11, 13, 14, 15, 16, 18, 21, 23, 24, 26, 28, 29, 30, 34, 36, 38 and 39, within thirty (30) days of its receipt from claimant of authorization for payment of any copying fees, and it is further
ORDERED, that defendant shall not be required to produce responses to any items for which defendant, within thirty (30) days of the date of filing of this Decision and Order, files and serves a motion for a protective order, and it is further
ORDERED, that Motion No. M-75992 is DENIED in all other respects.
May 6, 2009
Albany, New York
Judge of the Court of Claims
Papers considered
(1) Claim No. 113630, filed April 27, 2007;
(2) Verified Answer, filed May 17, 2007;
(3) Notice of Motion, dated December 8, 2008;
(4) Affidavit in Support of CPLR § 3124 Motion, sworn to December 8, 2008,
with Exhibits A-B;
(5) Defendant’s Response to Discovery Demands, dated January 7, 2009, with Exhibits A-J;
(6) Supplemental Response to Discovery Demands, dated February 4, 2009, with exhibit J;
(7) Affirmation in Opposition, dated February 4, 2009;
(8) Affidavit in Reply of Kerry Kotler, sworn to February 7, 2009;
(9) Supplemental Affidavit in Reply of Kerry Kotler, sworn to February 12, 2009.

[1]. These requests are, by the enumeration set forth in claimant’s September 10, 2008 demand, Numbers 12, 17, 27, 31, 32, 33, 35, and 37 (Kotler Affidavit, Exhibit A).
[2]. Defendant is hereby directed to provide the Court with two copies of the file of the Inspector General’s Office with respect to the alleged incident on May 2, 2006. One copy of the file shall be unredacted and the other shall be marked with proposed redactions that the defendant believes will protect any security interests or confidential information. After reviewing the submission, the Court will issue further direction indicating what, if any, portion of the documents in question should be provided to claimant.
[3]. In light of the security concerns attendant in permitting access to secured areas within a correctional facility, DOCS may impose reasonable restrictions on the time, date and manner in which such photographs shall be taken.