Claimant's motion to compel discovery pursuant to CPLR 3124 and 3126 denied.
|Claimant(s):||JOHNATHAN JOHNSON 89 A 1042|
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Johnathan Johnson, Pro Se|
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael C. Rizzo, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||November 6, 2009|
|See also (multicaptioned case)|
For the reasons set forth below, pro se Claimant's motion to compel discovery responses pursuant to CPLR 3124 and § 3126 is denied.
The Claim, which was filed with the Clerk of the Court on February 13, 2008, alleges that on February 2, 2008, while incarcerated at Upstate Correctional Facility (Upstate) located in Malone, New York, Claimant was denied medications for a sinus problem by the facility nurse. The Claim further alleges that Claimant failed to receive large enough portions of food resulting in headaches, dizziness, weight loss, and stomach pains.
The Claim was served upon Defendant on February 27, 2008 (see Ex. A attached to the State's Affirmation in Opposition). The State filed a Verified Answer on April 2, 2008. Thereafter, on or about July 15, 2008, Claimant served upon Defendant "Claimant's Disclosure Request for Production of Document" (filed with the Clerk of the Court on July 17, 2008). The State served a response to the Disclosure Request on April 27, 2009 (Ex. C attached to the State's Affirmation in Opposition). Claimant now seeks to compel Defendant to respond to Disclosure Demands 3, 6 and 10 on the grounds the information sought is material and necessary to the prosecution of his Claim. Claimant's Demands and the State's Responses to the items in question are as follows:
3. DEMAND: Produce a copy of the medical supply lists to the hospital for February 2, 2008 or prior to that date for Upstate 11-Building.
RESPONSE: There is no such list responsive to this demand.* * *
6. DEMAND: Produce a copy of the grievances complaints files under Directive 4040 inmate grievance program section 701.6(k)(3) for the current calendar year plus the previous four or two years.
RESPONSE: Defendant objects to this demand as overly broad, unduly burdensome and not relevant to the pending litigation. Furthermore, defendant objects to its release under the security privilege pursuant to Directive 4040, Section 701.6(k) - File maintenance/confidentiality, subsection (1) sets forth in pertinent part "No grievance documents shall be disseminated to persons other than the grievant, a direct party, or an individual involved in the review process without the approval of the IGP supervisor."* * *
10. DEMAND: Produce a copy of the names of all "civilian mess hall staff" that [monitor] all trays during preparation" at the Upstate Correctional Facility from the years 2006, 2007 and 2008.
RESPONSE: Defendant objects to this demand as overly broad, unduly burdensome and not relevant to the pending litigation.
(Ex. C, pp. 2-3 attached to State's Affirmation in Opposition).
CPLR § 3101(a) provides that there "shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." However, it is axiomatic that "a party cannot be compelled to produce documents which do not exist" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]; see Payton v State of New York, 21 Misc 3d 1143[A] [Ct Cl 2008]). In response to Demand 3, the State asserts that no such list exists and has provided an affidavit from the Nurse Administrator at Upstate stating that she is "fully familiar with the records maintained within [Upstate's] health unit" and that her "office does not maintain any document identified as a 'medical supply list' " (Ex. D attached to State's Affirmation in Opposition). The Court finds the State's response to this Demand reasonable and proper.
Regarding Demand 6, the Court finds the request for all grievances filed "under Directive 4040 … for the current calendar year plus the previous four or two years" to be overly broad. Claimant has submitted no proof, other than a conclusory statement, that the items sought are material and necessary to his Claim (Claimant's Affidavit in Support, ¶ 3). Claimant's discovery request was made in July 2008 and, in part, requests grievances for "the current calendar year," however, the Claim was filed in February 2008 and involves incidents that took place prior to that date. Claimant has failed to establish that any grievance filed after February 2008 has any relevance to his Claim, and has further failed to establish to what Directive 4040 relates, for the Court to consider whether the Directive even has any relevance to this matter. Claimant's own grievances presumably are in his possession, and grievances, if any, filed by other inmates are not relevant to Claimant's cause of action. The general rule is that "it is improper to prove that a person did an act on a particular occasion by showing that he [or she] did a similar act on a different, unrelated occasion (see Matter of Brandon, 55 NY2d 206, 210-211 ; see also Coopersmith v Gold, 89 NY2d 957, 959 ; Davis v State of New York, Claim No. 114692, Motion No. M-75227, December 16, 2008, Hard, J. [UID No. 2008-032-128]). The Court finds the State's responses to this Demand reasonable and proper.
Turning to Demand 10, the Court finds the request for the names of all civilian mess hall staff who monitored all trays during preparation at Upstate from the years 2006, 2007 and 2008 to be overly broad. Claimant has submitted no proof, other than a conclusory statement, that the items sought are material and necessary to his Claim (Claimant's Affidavit in Support, ¶ 3).
Claimant's Claim alleges that he failed to receive sufficient portions of food. It appears to the Court that this demand relates to that cause of action. However, the Claim does not allege a time period during which he allegedly received insufficient meals or what meal (i.e. breakfast, lunch or dinner) was insufficient. To allow Claimant access to the names of mess hall workers for a three- year period without a demonstration of need is overbroad and an undue burden upon Defendant.
The Court finds the State's responses to the three Demands reasonable and proper. Therefore, Claimant's motion to compel responses is denied.
November 6, 2009
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's motion to compel:
Notice of Motion, Affidavit in Support 1
Affirmation in Opposition
& Exhibits Attached 2
Filed Papers: Claim, Answer