New York State Court of Claims

New York State Court of Claims
CARDEW v. THE STATE OF NEW YORK, # 2010-009-010, Claim No. 113098, Motion No. M-77121


Claimant's motion for an order to compel further discovery was denied.

Case information

UID: 2010-009-010
Claimant(s): ROBERT CARDEW
Claimant short name: CARDEW
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113098
Motion number(s): M-77121
Cross-motion number(s):
Claimant's attorney: ROBERT CARDEW, Pro Se
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Thomas M. Trace, Esq.
Senior Attorney,
Of Counsel.
Third-party defendant's attorney:
Signature date: March 29, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant has brought this motion seeking an order to compel the defendant to answer his previously served discovery demands.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affidavit in Support 1,2

Affirmation in Opposition, with Exhibits 3

Reply Affidavit 4

Correspondence dated November 23, 2009 from Thomas M. Trace, Esq., Senior Attorney, with copies of two Court of Claims Decisions and Orders 5

In this claim, claimant seeks damages for personal injuries suffered by him when he was assaulted by one Herbert Scandell on or about October 20, 2006 at Marcy Correctional Facility (Marcy), where they were both then incarcerated. In this claim, claimant also seeks damages for personal injuries suffered by him as a result of a broken window in the Special Housing Unit cell (SHU) at Marcy, where he had been moved following the incident involving inmate Scandell.

In this motion, claimant seeks an order compelling the defendant to respond to his previously served Demand for Production of Documents, consisting of 35 separate demands, as well as a response to his demand for the names and addresses of witnesses.

The Court notes that these disclosure demands were the subject of a prior motion instituted by the claimant (M-73246). In a Decision and Order to that motion, this Court directed the defendant to produce certain documents for an in camera review, including the disciplinary history of inmate Scandell, the disciplinary report and hearing disposition against inmate Scandell generated from the assault, and statements given by claimant and inmate Scandell to State police investigators regarding this incident. In a subsequent Decision and Order following its in camera review, this Court directed that such documents, in redacted form, be provided to claimant.

Claimant now seeks an order directing the production of documents set forth in demands that were not specifically addressed in that Decision and Order. In his motion, claimant seeks the production of documents identified in his demands numbered: 4, 5, 11, 12, 13, 15, 16, 17, 19, 20, 26, 27, 29, 30, 31, 32, 33, 34 and 35. Claimant also seeks responses to his demands for witness information numbered: 10, 12, 13 and 22. In his Affirmation in Opposition to this motion (Item 3), defendant's attorney has submitted a response to these demands.

Upon its review of the demands, defendant's responses, and claimant's further arguments seeking production (Item 4), the Court finds that defendant's responses to the demands numbered 12, 13, 15, 16, 17, 29, 30, 31, 32, 33, 34, and 35 are proper and adequate. No further response from the State is required with respect to these specific demands.

Defendant did not provide responses to the remaining demands (4, 5, 11, 19, 20, 26 and 27) for which claimant seeks production in this motion, contending that these demands seek records, documents, or photographs containing personal information of inmate Scandell, and that the State is not authorized to disclose such information.

As noted herein, this Court had previously determined that certain records pertaining to inmate Scandell, claimant's assailant, were material and necessary to the prosecution of this action, and ordered the disclosure of such documents including, among other things, inmate Scandell's disciplinary history and the disciplinary report and hearing disposition generated by this assault. In its decision, this Court determined that such documents could possibly provide relevant information with regard to potential State liability in determining whether the State knew, or should have known, of a foreseeable risk of assault.

In this case, however, there does not appear to be any dispute that inmate Scandell was claimant's assailant in this incident. Therefore, information regarding inmate Scandell, and his involvement in this incident, is not relevant to a determination of the essential issues of this claim, and will not likely lead to any admissible or relevant evidence. As a result, demands seeking photographs of inmate Scandell following the incident (No. 11), inmate Scandell's medical records (No. 19) and mental health records (No. 20) are not relevant to the issues at dispute in this claim.

The remaining demands (4, 5, 26 and 27) request information pertaining to inmate Scandell, claimant's assailant. In its Decision and Order to claimant's prior motion (M-73246), this Court has already determined the full extent of disclosure which must be made by the defendant with respect to inmate Scandell. No further disclosure is relevant or necessary in response to these four demands.

Accordingly, based upon the foregoing, the Court finds that the responses set forth in defendant's Affirmation in Opposition to this motion are sufficient, and claimant is not entitled to any further production of documents set forth in his demands.

The Court has also reviewed the witness disclosure demands (10, 12, 13 and 22) and the responses contained in defendant's Affirmation in Opposition. It appears that these demands for the names of witnesses pertain to the allegations with respect to the injuries allegedly suffered by claimant from the broken window in his SHU cell. The Court has reviewed the demands, the original responses to the demands made by the defendant, and the further responses set forth in its Affirmation in Opposition to this motion, and finds such responses to be proper and adequate in all respects. No further response is therefore required by defendant to these demands noting, however, defendant's continuing duty to supplement its responses if the names of other witnesses become known, or if it retains an expert witness in this matter.

Based upon the foregoing, it is

ORDERED, that Motion No. M-77121 is hereby DENIED.

March 29, 2010

Syracuse, New York


Judge of the Court of Claims