Claimant's motion to compel discovery and impose sanctions was granted to the extent of compelling defendant to produce certain items of discovery and otherwise denied.
|Claimant short name:||ANDERSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Terrance Anderson, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Michael T. Krenrich, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 7, 2018|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves to compel defendant's compliance with discovery pursuant to CPLR 3124 and for the imposition of sanctions.
Claimant, a prison inmate, seeks damages for wrongful confinement to the Special Housing Unit following a prison hearing in which he was found guilty of violating certain prison disciplinary rules. On June 14, 2018, claimant served defendant with a notice for discovery in which he requested the following:
"1) Electronically recorded tapes (2 tapes) of hearing conducted on 9/11/15 - 9/16/15 by (H.O.) Charles White at Great Meadow C.F., Tapes #1051-15.
2) Electronically recorded tapes of hearing held/conducted by C.H.O. K. Henley on 8/17/15 at Great Meadow C.F." (claimant's Exhibit A).
In opposition to the instant motion defense counsel concedes that it received claimant's discovery notice and was delayed in responding. Claimant states in reply that he received tapes in response to item one of his discovery notice but "[b]oth tapes have been completely destroyed (Broken and Cracked) [and] are unable to be utilized in a cassette player. Tapes arrived smashed and in an envelope marked 'Received In Damaged Condition' with no initials" (Anderson affidavit sworn to Oct. 11, 2018, ¶ 3). Claimant also indicates that he has not yet received a response to item two of his discovery notice.
Defendant has articulated no objection to the production of the hearing tapes and they are obviously relevant to the instant wrongful confinement claim. As a result, in response to claimant's discovery notice defendant is directed to provide to the claimant undamaged cassette tapes responsive to demands number one and number two of his Demand for Discovery and Inspection, sworn to on June 14, 2018, within thirty days of the date this Decision and Order is filed.
To the extent claimant seeks sanctions, his request is denied as he failed to demonstrate that defendant's failure to disclose was willful, contumacious or in bad faith (Francis v Mount Vernon Bd. of Educ., 164 AD3d 873 [2d Dept 2018]; Green Tree Servicing LLC v Bormann, 157 AD3d 1112 [3d Dept 2018]; CPLR 3126).
Accordingly, claimant's motion is granted to the extent indicated.
December 7, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims