New York State Court of Claims

New York State Court of Claims
BROWN v. THE STATE OF NEW YORK, # 2010-032-002, Claim No. 115255, Motion No. M-77133

Synopsis

Case information

UID: 2010-032-002
Claimant(s): GENEO BROWN
Claimant short name: BROWN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115255
Motion number(s): M-77133
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: Geneo Brown, Pro Se
Defendant's attorney: Hon. Andrew M. Cuomo, NYS Attorney General
By: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:
Signature date: March 2, 2010
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves this Court for an order compelling defendant to comply with certain outstanding items set forth in claimant's discovery demands dated July 13, 2008. Defendant opposes the motion on the basis that: 1) some of claimant's requests are overbroad and vague; 2) some of claimant's requests will be provided upon receipt of payment at the rate of $0.25 per page; and 3) certain requested items are not in defendant's possession.

The underlying claim alleges assault and battery, the filing of false disciplinary charges, fraud, negligence, abuse of process and medical malpractice occurring while claimant was incarcerated at Southport Correctional Facility.

Although claimant's Affidavit in Support of his motion to compel alleges a general failure by defendant to comply with his discovery demands, claimant's Reply "Affirmation" appears to narrow the outstanding items, as follows: 1) "video recordings, e-mails, to-from [memoranda] and any other relevant material" pertaining to claimant's hunger strike; 2) transcripts of the hearing which resulted in the issuance of the court order, dated November 29, 2007, directing claimant to be force fed; 3) any and all log book notations from the infirmary, B-Block and C-Block regarding claimant's hunger strike during the months of November and December 2007, and April through July 2008; and 4) "DOCS medical divisions dietary calories consumption requirements for patients on nasogastric tube feedings and medical guideline for the ideal weight of a patient 5 feet 6 inches"and "DOCS medical standards for the need of nasogastric tube feeding and the symptoms of danger warranting such treatment."

1. Documentation pertaining to claimant's hunger strike

Claimant requested, in his Request to Produce Documents, that defendant produce "video recording, e-mails, to-from [memoranda] and any other relevant material" pertaining to his hunger strike. In its Affirmation in Opposition to the pending motion, defendant indicated that it anticipated receiving a response regarding the existence and cost of the reproduction of video recordings, e-mails, and to-from memoranda on or before November 30, 2009, and would, at that time, notify claimant of the cost for the same. The Court finds defendant's response to be appropriate. Accordingly, if defendant has not yet provided claimant with information regarding the existence and cost of the reproduction of the requested materials, defendant is directed to provide the same to claimant within thirty days of the filing of this Decision and Order. Defendant shall provide claimant with the requested materials within fifteen days of receipt of the cost of reproducing the same.

As to claimant's request for "any other relevant material", defendant objected on the basis that the demand is overbroad and vague. The Court agrees. It is well settled that claimant's use of terms such as "all" and "any and all" in discovery demands constitutes an overly burdensome demand for discovery (MacKinnon v MacKinnon, 245 AD2d 690 [3d Dept 1997]). Accordingly, claimant's motion to compel a response to this portion of claimant's demand is denied.

2. Transcripts of the Hearing

Claimant demanded, in his Request to Produce Documents, a copy of the transcript of the hearing which resulted in the issuance of a court order dated November 29, 2007, which directed that claimant be force fed. In its July 29, 2008 Reply to Claimant's Request for Production of Documents, defendant advised claimant that it would look to see if it had a copy of the hearing transcript and if it did, a copy would be provided at a cost of $0.25 per page, and that if it did not, one could be obtained by request to the Chemung County Supreme Court. Thereafter, in its Affirmation in Opposition to the pending motion, defendant affirmed that it was not in possession of a copy of the subject hearing transcript and reiterated that the requested transcript may be obtained by contacting the Chemung County Supreme Court. The Court deems defendant's response to be appropriate. It is not incumbent upon the State to conduct claimant's discovery for him, or to obtain materials for claimant which are equally available to the claimant (Salahuddin v State of New York, Claim No. 113577, Motion No. M-73274, M-73416 [UID 2007-042-519] [July 31, 2007, Siegel, J.]). Accordingly, claimant's request to compel defendant to produce a copy of the requested hearing transcript is denied.

3. Log book notations from the infirmary, B-Block and C-Block

Claimant requested, in his Request to Produce Documents, a copy of log book notations from the infirmary, B-Block and C-Block regarding claimant's hunger strike during the months of November and December 2007, and April through July 2008. In its Affirmation in Opposition to the pending motion, defendant indicated that it anticipated receiving a response regarding the existence and cost of the reproduction of said documents on or before November 30, 2009, and would, at that time, notify claimant of the cost for the same. The Court finds defendant's response to be appropriate. Accordingly, if defendant has not yet provided claimant with information regarding the existence and cost of the reproduction of the requested materials, defendant is directed to provide the same to claimant within thirty days of the filing of this Decision and Order. Defendant shall provide claimant with the requested materials within fifteen days of receipt of the cost of reproducing the same.

4. Medical information regarding nasogastric tube feedings

Claimant requested, in his Request to Produce Documents "DOCS medical divisions dietary calories consumption requirements for a patient on nasogastric tube feedings and medical guideline for the ideal weight of a patient 5 feet 6 inches"and "DOCS medical standards for the need of nasogastric tube feeding and the symptoms of danger warranting such treatment." In its Affirmation in Opposition to the pending motion, defendant indicated that the information may be requested directly from claimant's current facility's medical department but that it, nonetheless, anticipates receiving a response regarding the cost of reproduction of said documents on or before November 30, 2009, at which time defendant will notify claimant of the costs. The Court finds this response to be acceptable. Accordingly, if it has not yet done so, defendant is directed to provide the cost of said reproduction to claimant within thirty days of the filing of this Decision and Order. Defendant shall provide claimant with the requested materials within fifteen days of receipt of the cost of said reproduction.

In light of the foregoing, claimant's motion to compel is granted in part and denied in part.

March 2, 2010

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion to Compel Discovery, dated August 20, 2009, with Affidavit in Support of Geneo Brown, sworn to August 20, 2009, with Exhibit;

2. Affirmation of Roberto Barbosa, AAG, in Opposition to Claimant's Motion to Compel Discovery, dated November 4, 2009, with Exhibits;

3. Reply "Affirmation" of Geneo Brown, dated November 8, 2009.

Papers Filed: Claim, filed May 15, 2008; Order, filed May 21, 2008; Verified Answer, filed June 5, 2008; Order of Hon. Thomas J. McNamara, dated June 18, 2008; Amended Claim, filed February 1, 2010; Verified Answer to Amended Claim filed March 1, 2010.