Claimant's motion to compel discovery was granted in part.
|Claimant short name:||HAYES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Sidney Hayes, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 19, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves pursuant to CPLR 3126 and 3124 for an Order either precluding the defendant from introducing evidence at trial or compelling the defendant to produce certain discovery materials which were duly demanded or, in the alternative, assigning counsel to represent the claimant in the prosecution of the instant action.
Claimant seeks damages for injuries allegedly sustained when he was assaulted by an inmate with a razor in the honor block basement of Great Meadow Correctional Facility on June 10, 2007.
Claimant's seeks the following in his notice for discovery and inspection:
"A. A copy of the felony/criminal complaint filed against the inmate who cut Claimant in the face on June 10, 2007, in the honor block basement at Great Meadow Correctional Facility, regarding this assault.
B. The date in which the inmate who assaulted Claimant arrived at Great Meadow Correctional Facility.
C. A copy of the procedure and/or directive to be followed when placing inmates in the honor block program at Great Meadow Corr. Fac.
D. the date in which the inmate who cut Claimant in the face was placed in honor block at Great Meadow Corr. Fac.
E. The procedural requirements an inmate must satisfy in order to be placed in the honor block program at Great Meadow Corr. Fac.
F. The number of inmates housed in honor block at Great Meadow Corr. Fac. on June 10, 2007.
G. The number of Security Staff assigned to the honor block during inmate recreation at Great Meadow Corr. Fac.
H. The number of violent incidents that occurred in the honor block basement at Great Meadow Corr. Fac., between 1992 - 2009.
I. The number of violent incidents that occurred in the honor block basement at Great Meadow Corr. Fac. between 1992 - 2009, in which weapons were involved.
J. The number of "honor block inmates" that were involved in violent incidents and/or conduct at Great Meadow Corr. Fac. between 1992 - 2009.
K. A complete set of photographs of the entire honor block basement (i.e., front, back, right side, left side), at Great Meadow Corr. Fac.*
*It should be noted, Claimant requested demand -K in his original request for Discovery, and was told that the defendant did not possess any such photographs. Claimant, then requested that the requested photographs be taken, developed and provided; however, Claimant's numerous request were never answered."
Defendant objects to demands "A", "B", "D", "F", "H", "I", and "J" on the ground, inter alia, that the documents sought are privileged because they contain sensitive security information.(1) CPLR 3101 provides for the disclosure of all items "material and necessary in the prosecution or defense of an action. . . ." The Court of Appeals has interpreted these words liberally to require the disclosure "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406 ). Exceptions to the policy of liberal disclosure include the disclosure of statutorily privileged material (e.g. CPLR 4501- 4508) or material which is privileged under the common law (Wilson v State of New York, 36 AD2d 559 ).
The public interest privilege is a common law creation applied to immunize the disclosure of "confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged" (Cirale v 80 Pine St. Corp., 35 NY2d 113, 117  [internal marks and citations omitted]; see also Lowrance v State of New York, 185 AD2d 268 ). The privilege is not absolute and whether it attaches in a particular case is a fact-specific determination requiring the Court to balance the interests of the party seeking the disclosure against the governmental-public interest at stake should the materials sought lose their shield of confidentiality (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8-10 ). Entitlement to the privilege requires that "an agency claiming some special governmental-public interest 'cone of silence' demonstrate the specific public interest that would be jeopardized by an otherwise customary exchange of information (Id. at 8, quoting Cirale v 80 Pine Street Corp., 35 NY2d at 119; see also Parker v State of New York, 269 AD2d 255 ). In light of the strong policy in favor of full disclosure, the burden of establishing immunity is on the party invoking the privilege (Matter of Labarbera v Ulster County Socy. for Prevention of Cruelty to Animals, 277 AD2d 672, 673 ; Wilson v State of New York, 36 AD2d 559 ). In the prison setting, such a showing has been satisfied when the material sought implicates legitimate security concerns (Shantelle S. v State of New York,11 Misc 3d 1088[A]; Tyree v State of New York, Ct Cl, May 6, 2002 [Claim No. 101474, Motion No. M-63202, UID # 2002-019-530] Lebous, J., unreported; Brown v State of New York, Ct Cl November 5, 2001 [Claim No. 103284, Motion No. M-63858, UID # 2001-015-200] Collins, J., unreported).
Here, defense counsel's unsupported assertion of a "security privilege" is insufficient to invoke the privilege. Absent some demonstration of how or why prison security would be jeopardized in the event disclosure is mandated, defendant failed to meet its burden of showing the documents are immune from disclosure. Accordingly, defendant is directed to provide responses to claimant's demands denominated "B", "D" and "F". While defendant failed to establish that demands "A", "H", "I" and "J" are privileged, they are objectionable on other grounds.
With respect to the claimant's request for "the felony/criminal complaint filed against the inmate who cut claimant. . ." (claimant's demand "A"), in addition to the claim of privilege, defendant asserts in its response to this demand that the documents may be obtained from the Washington County District Attorney's Office. Since discovery of documents that are available as a matter public record should not be compelled (see Cabellero v City of New York, 48 AD3d 727 ; Penn Palace Operating v Two Penn Plaza Assoc., 215 AD2d 231 ), claimant's motion is denied to the extent it seeks to compel production of the felony complaint. With respect to claimant's demands "H" "I" and "J", defendant objects on the grounds that a response would be overly burdensome and require the creation of documents (claimant's Exhibit B). A notice for discovery and inspection is appropriate to require a party "to produce and to permit the party seeking discovery . . . to inspect, copy test or photograph any designated documents or any things which are in the possession, custody or control of the party. . . served" (CPLR 3120  [i]). Claimant's demands denominated "H", "I", and "J" require answers to interrogatories, not the production of documents or things in the possession of the defendant.(2) As a result, these demands are inappropriate for a notice for discovery and inspection. In addition, the demands seeking information regarding violent incidents involving honor block inmates at Great Meadow between 1992 and 2009 is overbroad.
With respect to claimant's demand for "[t]he number of security staff assigned to the honor block during inmate recreation, at Great Meadow Corr. Fac." (claimant's demand denominated "G"), defendant objects on the grounds that the material sought is overly broad, burdensome and irrelevant (claimant's Exhibit B). The Court agrees that this demand is overly broad and will therefore restrict the demand to the date and time of the alleged incident.
With respect to claimant's demand "K", the defendant has responded that there are no such photographs. "[I]t is axiomatic that a party may not be compelled to create documents in order to comply with discovery demands" (Matter of General Elec. Co. v Macejka, 252 AD2d 700, 701 , lv dismissed 92 NY2d 1012 ; see also, Matter of Calabritto v Dillon, 309 AD2d 744 ). Inasmuch as claimant's demand denominated "K" requires the production of photographs not currently in existence, the demand is improper.
Lastly, defendant has provided responses to claimant's demands denominated "C" and "E" and the motion is therefore moot with respect to these demands.
To the extent claimant seeks the assignment of counsel, the motion is denied. This is not a proper case for the assignment of counsel as claimant does not face a grievous forfeiture or the loss of a fundamental right (Matter of Smiley, 36 NY2d 433 ; Wills v City of Troy, 258 AD2d 849 , lv dismissed 93 NY2d 1000 ).
Based on the foregoing, claimant's motion is granted to the extent of requiring the defendant to respond, within thirty days of the date this Decision and Order is filed, to claimant's demands denominated "B", "D", "F", "G" in accordance with this Decision and Order and is otherwise denied.
March 19, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of Motion dated September 21, 2009;
2. Affidavit of Sidney Hayes sworn to September 22, 2009 with exhibits;
3. Affirmation In Opposition dated November 25, 2009;
4. Supplemental Response To Claimant's Second Notice For Discovery And Inspection dated November 25, 2009;
5. Claimant's unworn reply dated December 5, 2009.
1. The defendant invoked the "security privilege" with respect to the claimant's demand denominated "F" in its response to claimant's demands dated May 21, 2009.
2. While some of the information demanded may be appropriate for interrogatories (CPLR 3131), it is inappropriate for a notice for discovery and inspection.