New York State Court of Claims

New York State Court of Claims

ABASCAL v. THE STATE OF NEW YORK, #2009-042-521, Claim No. 113160, Motion No. M-77069


Synopsis


This motion is brought by claimant to compel disclosure concerning issues contained in discovery notices and in a subpoena duces tecum and that a judgment by default be rendered against the defendant, the court designate a referee to supervise all disclosure and that the court direct defendant to pay claimant costs plus attorney’s fees to cover the additional time and expenses caused by defendant’s “unwarranted resistance.” The court directed the defendant to provide disclosure of certain items, claimant’s requests that issues be resolved in claimant’s favor, that a default judgment be entered against defendant, that a referee to supervise disclosure and an award of fees and costs be made to claimant are denied.

Case Information

UID:
2009-042-521
Claimant(s):
ISIDRO ABASCAL
Claimant short name:
ABASCAL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113160
Motion number(s):
M-77069
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ISIDRO ABASCAL, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 5, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on claimant’s motion to compel disclosure:

  1. Notice of Motion, filed August 10, 2009
  2. Affidavit of Isidro Abascal, sworn to August 6, 2009
  3. Exhibits A - G (see Appendix), annexed to the moving papers
  4. Letter from G. Lawrence Dillon, Esq., dated August 15, 2009
  5. Letter from Andrea Lynch, Esq., law clerk, dated August 18, 2009

On August 10, 2009 the pro se claimant filed a notice of motion to compel disclosure. Claimant seeks an order compelling disclosure, that all issues contained in discovery notices dated July 1, 2007 and in a subpoena duces tecum dated July 7, 2008 be deemed resolved in claimant’s favor, that a judgment by default be rendered against the defendant, that the court designate a referee to supervise all disclosure, and that the court direct defendant to pay claimant costs plus attorneys fees to cover the additional time and expenses caused by defendant’s “unwarranted resistance”.

Interestingly however, defendant submitted no opposition to the motion.

In light of defendant’s lack of opposition to the discovery motion, the court will treat the matter briefly and as follows:
  1. Defendant will provide full and complete responses to Items #1 and #2 of the aforementioned judicial subpoena to claimant within 45 days from the date of filing of this decision and order.
    1. If the defendant contends that documents or records do not exist, defendant shall so state in writing, in a sworn affidavit.
    2. In the event that defendant contends that any documents required by Items #1 and #2 are subject to privileges, statutes preventing disclosure or otherwise protected from disclosure, those specific documents will be provided, under seal, to the court for its in camera review within 45 days from the date of filing of this decision and order. Each individual item or document submitted in camera will be accompanied by a memorandum generally describing the nature of the document and providing detailed legal and factual support for defendant's contention that the specific item is not subject to disclosure to claimant.
      1. While claimant will not be provided with any of the in camera items submitted to the court, the defendant will provide claimant with copies of all of the memoranda submitted to the court, so that claimant might know the nature of the privilege asserted by defendant. Claimant will have 45 days from the date of service of the memoranda upon claimant and the court to submit a written response to the court and to the defendant.
      2. Thereafter, the court will issue a written ruling on any of the contested material.
  2. Defendant will provide full and complete responses to claimant's request for production of documents, except for items #8 and #9, which are covered by the subpoena duces tecum, and dealt with above.
    1. Defendant shall identify which documents respond to each of the listed items of the request for production of documents - it will not be satisfactory to simply provide documents without identifying the numbered request for which the documents are provided.
    2. If defendant contends that the requested records or materials do not exist, then defendant shall so state in writing, in a sworn affidavit.
    3. Since defendant offered no opposition to the motion, defendant cannot now object to disclosure on any grounds other than privilege, or statutory prohibition against disclosure.
      1. In the event that a privilege is asserted, the procedures as set forth in paragraph 1 (b) and its subparagraphs shall be utilized.
  3. Defendant will provide full and complete responses to claimant's request for interrogatories, except that no response shall be required to interrogatory #10 (the same requested information is covered by the subpoena duces tecum). Since defense counsel's letter to claimant (attached as an exhibit to claimant's moving papers, and dated August 13, 2007) offers no claim of a specific privilege preventing a response, other than the general assertion that disclosure under CPLR Section 3101 must be balanced against safety concerns for inmates and employees, and since no specific concerns are in fact identified, the defendant shall not claim a privilege as a basis for not responding in full. Defendant will provide full and complete answers to interrogatories within 45 days from the date of filing of this decision and order.
    1. If the defendant contends that it has no information concerning a specific interrogatory, it shall so state in writing, in a sworn affidavit.
Claimant’s motion is granted insofar as is set forth above. However, while the court is disconcerted by the manner in which discovery has proceeded, this is the first motion on discovery in this action. Accordingly claimant’s requests that issues be resolved in claimant’s favor, that a default judgment be entered against defendant, that a referee to supervise disclosure, and an award of fees and costs be made to claimant are denied at this time.



October 5, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims