Claimant's motion to compel discovery and strike defendant's answer is denied in its entirety. Defendant's cross-motion seeking a protective order is granted.
|Claimant(s):||JESSIE J. BARNES|
|Claimant short name:||BARNES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Jessie J. Barnes, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Ray A. Kyles, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||October 6, 2017|
|See also (multicaptioned case)|
On January 5, 2012, claimant filed a claim alleging that, on April 15, 2010, he was assaulted by DOCCS employees. He alleges that during this assault his eyeglasses, valued at $200.00, were improperly confiscated from him. He further alleges that on June 14 and 15, 2010, correction employees at Upstate Correctional Facility (Upstate) destroyed his legal documents. He values the loss of his eyeglasses and legal documents at $445.90. He seeks total damages in the amount of $200,245.95.
Claimant now brings a motion seeking: (1) interdepartmental communication, memoranda, or reports relating to Upstate claim nos. 840-0142-10 and 840-0113-10; (2) relevant policies - 4091 log books, 2011 disposition of departmental records, 4942 fixed video monitoring system, Div. of Health Servs. on "vision care" and/or no-fault institution claim; and (3) video footage from April 15, 2010 at 4:50 p.m. In the alternative, claimant requests that the Court strike defendant's answer for the willful and contumacious destruction of the April 15, 2010 videotape. Defendant cross-moves for a protective order.
Motion to Compel
CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (see Wiggins v Kopko, 105 AD3d 1132, 1134 [3d Dept 2013]; Murphy v Hamilton, 90 AD3d 1294, 1295 [3d Dept 2011]). Where a party "fails to respond to or comply with any request, notice, interrogatory, demand, question or order . . . , the party seeking disclosure may move to compel compliance or a response" (CPLR 3124). "The phrase 'material and necessary' is 'to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'" (Yoshida v Hsueh-Chih Chin, 111 AD3d 704, 705 [2d Dept 2013], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 ). However, "[a] party is not obligated to provide unlimited, uncontrolled and unfettered disclosure" (Gutierrez v Trillium USA, LLC, 111 AD3d 669, 672 [2d Dept 2013] [internal quotation marks and citation omitted]), and "those demands which are unduly burdensome or lack specificity or seek privileged matter or seek irrelevant information or are otherwise improper must be denied" (Capoccia v Spiro, 88 AD2d 1100, 1101 [3d Dept 1982], appeal dismissed 57 NY2d 774 ; see Slate v State, 267 AD2d 839, 841 [3d Dept 1999]).
First, claimant requests interdepartmental communication, memoranda, or reports relating to Upstate claim numbers 840-0142-10 and 840-0113-10. The Court denies this request, as defendant has already provided claimant with the responsive documents. (Affirmation in Support of Motion for a Protective Order, Exhibit 6). Claimant's allegation that defendant withheld the case file for the two Upstate claims is completely unsupported. Claimant submits only an unfulfilled Freedom of Information Law (FOIL) request to support the allegation.
Second, claimant requests the following relevant departmental policies: No. 4091 on log books, No. 2011 on disposition of departmental records, No. 4942 on fixed video monitoring system, and a Division of Health Services policy on "vision care" and/or no-fault institution claim. Defendant objected to these demands on the basis that claimant can obtain copies of relevant DOCCS policies from his facility's library. As defendant is not required to conduct claimant's research for him, the defendant's response is reasonable and proper. Thus, the Court denies this request. Moreover, the Court has already ruled on claimant's demand for defendant to disclose DOCCS Division of Health Services Policy on vision care and/or no-fault institution claim in a Decision and Order filed on January 30, 2014 by Judge Renée Forgensi Minarik.
Lastly, claimant requests videotape footage from April 15, 2010, the date of the incident in question. The Court notes that this videotape has been the subject of several motions to compel filed by claimant. In a Decision and Order filed on October 22, 2014, Judge Minarik ordered that defendant produce this videotape. Defendant provided claimant with a copy of the videotape on March 10, 2015, and provided the Court with a copy of the videotape on or about March 31, 2015. Claimant then filed multiple motions regarding the videotape. Motion number M-86962 sought the original videotape of the April 15, 2010 incident; Motion number M-87385 sought a subpoena duces tecum compelling defendant's counsel to testify concerning and produce a tape of the telephone conversation the parties had on February 12, 2015; and Motion number M-87598 sought to compel defendant's counsel to produce audio recording and any log books in defendant's possession regarding the February 12, 2015 telephone conversation. In a Decision and Order filed on April 27, 2016, Judge Minarik denied all three of claimant's motions. Subsequently, claimant filed a motion seeking to reargue Motion number M-86962. In a Decision and Order filed on January 25, 2017, Judge Minarik denied claimant's motion. Claimant now seeks a copy of the April 15, 2010 videotape, and argues again that the footage he already received has been tampered with. However, claimant has failed to set forth any cogent argument to support that assertion. Accordingly, the Court denies this request, and denies claimant's request to strike defendant's answer.
Motion for a Protective Order
As noted by Judge Minarik in the last Decision and Order issued regarding discovery in this matter, claimant has filed six previous motions regarding the April 15, 2010 videotape. Only two were appropriately made. Defendant now requests that the Court issue a protective order striking claimant's demands for the production of the April 15, 2010 videotape that were received by the Attorney General on January 9, 2013 and March 25, 2015. Given the Court's "broad discretionary power in controlling discovery[,]" the Court finds that a protective order is necessary. Claimant has now filed five inappropriate motions regarding the April 15, 2010 videotape despite defendant's compliance with the Court's order. Thus, the Court orders that claimant's "Demands for Production of Documents (Videotape)" dated January 6, 2013, and March 19, 2015 be stricken, and defendant's cross-motion for a protective order is granted.
Based upon the foregoing, it is hereby
ORDERED that claimant's motion to compel discovery and strike defendant's answer (M-90253) is denied in its entirety; and it is further
ORDERED that defendant's cross-motion seeking a protective order (CM-90503) is granted, and that claimant's "Demands for Production of Documents (Videotape)" dated January 6, 2013, and March 19, 2015 are hereby stricken.
October 6, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated March 31, 2017; and, Affidavit, sworn to by claimant on March 31, 2017, with exhibits.
2. Notice of Motion for a Protective Order, dated May 25, 2017; and, Affirmation in Support of Motion for a Protective Order, affirmed by Ray A. Kyles, AAG on May 25, 2017, with exhibits.
3. Reply, sworn to by claimant on June 28, 2017, with exhibit.