|Claimant short name:||BROWN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|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:||December 22, 2010|
|See also (multicaptioned case)|
Claimant moves this Court for an order pursuant to CPLR 3126, alleging defendant's failure to comply with an order of this Court filed on March 22, 2010. Defendant opposes the motion, stating that it has complied with the directives of the Court and that any delay in doing so was not willful, contumacious or in bad faith. The Court agrees and denies claimant's motion. 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. Claimant previously moved this Court for an order compelling defendant to comply with outstanding discovery demands. The Court issued a Decision and Order which directed that if defendant had not yet done so, it was to provide claimant with information regarding the existence and cost of the reproduction of video recordings, e-mails, and to-from [memoranda] pertaining to claimant's hunger strike; 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 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 within thirty days of the filing of said Decision and Order, and further, that defendant shall provide claimant with the requested materials within fifteen days of receiving his payment for the same.
Claimant now alleges that defendant has still not provided him with a response to his request for certain documents, to wit: video recordings, e-mails, and to-from [memoranda] pertaining to claimant's hunger strike. In addition, claimant takes issue with defendant's response to claimant's request for the production of log book notations. In said response, defendant objected to claimant's demand for said log book notations, stating that it was unduly burdensome for defendant to go through all of the 500 pages of log book notations to determine which are responsive to claimant's inquiry, but that it would provide a copy of all of the documents to claimant upon receipt of $125.00 ($0.25 per page).
In opposition to claimant's motion, defendant argues that the Court's Decision and Order did not compel defendant to produce any information, but merely to inform claimant of the availability and cost of reproduction of the requested documents and to then produce the same upon receipt of payment. Defendant states that it provided a response to most of the inquiries by letter dated June 1, 2010. As to the other requests, defendant indicated that it only received the information on June 14, 2010, and that because the requested information is contained in approximately 290 pages which are not organized in accordance with the specific inquiries of claimant, defendant did not complete its review to determine if the documents properly addressed the issues raised by claimant, but that it would, as an alternative, provide claimant with a copy of all of the documents at a cost of $145.00 ($0.50 per page).
Defendant explained that the delay in obtaining the information, and the resulting inability to go through the voluminous documents in a timely fashion, was the result of having to contact three different correctional facilities and further, that whereas the medical documents of an inmate are usually transported with the inmate upon a relocation, that the medical documents regarding claimant's nasogastric tube are maintained at the Regional Medical Unit where the procedure was performed. In addition, defendant's counsel explains that it was necessary for him to contact staff at DOCS central offices to find the appropriate documents regarding the nasogastric procedure claimant underwent.
CPLR § 3126 allows the relief requested by claimant when a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.
In the present claim, the Court concludes that any failure on the part of defendant to produce the information as directed by this Court in the Order filed March 22, 2010, was not a refusal to obey an order or a willful failure to disclose the information. To the contrary, it seems that defendant has been attempting to comply with the directives of this Court but due to the nature and volume of the documents requested, was unable to do so in a timely manner and instead, offered an alternate solution which would enable claimant to have the requested documents sooner. Accordingly, the Court denies the relief demanded in claimant's motion. Notwithstanding said denial, however, the Court agrees with claimant that he should not have to pay for photocopies of all of the documents defendant received in response to its inquiries, and should be required to pay for only those documents that are responsive to his requests.
Based upon the foregoing, defendant is directed, to the extent it has not done so already, to review the documents it received in response to its inquiries and provide claimant with information regarding the existence and cost of the reproduction of the documents responsive to claimant's requests, as set forth in this Court's order filed on March 22, 2010, within thirty days of the filing of this Decision and Order. Defendant shall provide claimant with the requested materials within fifteen days of receiving his payment for the same.
Accordingly, Motion No. M-78506 is denied, except as defendant is directed above.
1. Notice of Motion and Affidavit of claimant, sworn to June 29, 2010;
2. Affirmation of Roberto Barbosa, AAG, in Opposition to claimant's motion, dated July 28, 2010; and
3. Affirmation of claimant in Reply, dated August 1, 2010.
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; Verified Answer to Amended Claim, filed April 5, 2010; and Decision and Order of Hon. Judith A. Hard, J.C.C., filed March 22, 2010.
December 22, 2010
Albany, New York
JUDITH A HARD
Judge of the Court of Claims