Claimant's motion to compel production of documents denied as moot. Motion to compel answers to interrogatories addressed to non-party employees of defendant denied, as interrogatories are properly addressed to a party but not an employee of a party, and the interrogatories sought information that would be properly sought by deposition. In the absence of objection to the notice of interrogatory addressed to the facility Superintendent, a response thereto shall be made, upon the condition that defendant may designate the appropriate person to respond to that interrogatory.
|Claimant short name:||VIDAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JOSEPH VIDAL, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 3, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for personal property allegedly lost or destroyed as the result of a cell search conducted on September 16, 2014 at Green Haven Correctional Facility (CF). Claimant moves for an order compelling defendant to comply with discovery demands to which defendant did not respond. Defendant thereafter served responses to the demands and opposes the motion. Claimant has submitted papers in reply.
On or about March 10, 2017, claimant served a demand for the production of documents and four notices of interrogatories, three of which were addressed to correction officers (COs) and one of which was addressed to the Green Haven CF Superintendent Thomas Griffin or his Security Services designee (see Vidal Affidavit ¶ 4; Exhibits 2-3). After having received no response from defendant, claimant made three attempts seeking defendant's response, all to no avail (id., ¶ 7; Exhibit 4 [Vidal Affidavit, ¶¶ 3-4]), prompting claimant to file this motion on June 5, 2017. Thereafter on August 10, 2017, defendant responded to the discovery demands by: (1) producing certain documents and objecting to certain items in the document demand, and (2) objecting to the three notices of interrogatories addressed to the COs on the ground that they were improper because they were addressed to non-parties (Gavin Affirmation, Exhibit B). Defendant subsequently opposed the motion arguing that the motion is defective because claimant did not annex his discovery demands to the motion papers filed with the Court, that the motion is moot because defendant has responded to the demands, and that the notices of interrogatories were improper because they were directed to three non-party employees.(1) In reply, claimant argues that he is entitled to responses to his interrogatories under CPLR §§ 3131 and 3133 (b). Claimant recites the documents that defendant has produced in response to his demands, but offers no argument addressed to those responses. Accordingly, that part of claimant's motion that seeks to compel production of documents will be denied as moot.
Inasmuch as defendant did not reply to claimant's notices of interrogatories within 20 days, "this Court's review is limited to determining whether the requested material is privileged under CPLR 3101 or the demand is palpably improper" (Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006] [internal quotations and citations omitted]; see also CPLR 3133 [a]). As defendant correctly contends, interrogatories specifically directed to the three COs, who are non-party employees of defendant are improper (see Martinez v State of New York, 111 AD3d 1445, 1446 [4th Dept 2013], lv dismissed 23 NY2d 956 ). Further, as the three notices of interrogatories directed to the COs seek information directly within the knowledge of those officers, they are tantamount to deposition on written questions and not interrogatories (see Rosa v State of New York, UID No. 2014-049-054 [Ct Cl, Weinstein, J., Oct. 14, 2014]; see also CPLR 3109). Claimant's reliance on Vividize, Inc. v Modern Litho, Inc. (59 AD2d 616 [2d Dept 1977]) for the general proposition that a defendant is required to answer interrogatories unless they lack personal knowledge does not compel a different result because that decision was addressed to interrogatories that were served on parties, not on non-party employees.
In its opposition to the motion, defendant does not object to the notice of interrogatory that is directed to the Green Haven CF Superintendent or his designee. That interrogatory seeks information about Department of Corrections and Community Supervision (DOCCS) and Green Haven CF rules governing the possession of personal property, and would be proper if it was directed to defendant State and not to an employee. Thus, the Court will exercise its broad discretion to supervise discovery by directing defendant to respond to this notice of interrogatory, to the extent that it has not already done so, provided that defendant may propound answers from any employee who possesses sufficient knowledge to provide informed responses to the interrogatory. In the event that defendant has not been served with this notice of interrogatory, it shall so notify claimant, who may re-serve the notice.
Accordingly, it is
ORDERED, that claimant's motion number M-90535 is GRANTED IN PART, and defendant shall to respond to the notice of interrogatory directed to Green Haven CF Superintendent Thomas Griffin, or his designee for Security Services, to the extent that it has not already done so, provided that defendant may designate the DOCCS employee who will respond to the interrogatory; and it is further
ORDERED, that claimant's motion number M-90535 is DENIED in all other respects.
November 3, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 125974, filed April 15, 2015;
(2) Notice of Motion, filed June 5, 2017;
(3) Affidavit of Joseph Vidal in Support of Motion to Compel, sworn to May 30, 2017, with
(4) Claimant's Memorandum of Law in Support of Motion to Compel, dated May 30, 2017;
(5) Correspondence of Elizabeth A. Gavin, AAG, dated August 7, 2017;
(6) Correspondence of Nancy Schulman, Principal Law Clerk, dated August 7, 2017;
(7) Correspondence of Elizabeth A. Gavin, AAG, dated August 9, 2017;
(8) Correspondence of Nancy Schulman, Principal Law Clerk, dated August 10, 2017;
(9) Correspondence of Elizabeth A. Gavin, AAG, dated August 11, 2017;
(10) Affirmation of Elizabeth A. Gavin, AAG, in Opposition, dated August 11, 2017;
(11) Correspondence of Joseph Vidal, dated August 14, 2017, with Exhibit (Correspondence
of Elizabeth A. Gavin, AAG, dated August 10, 2017, with Response to Notice of
Production of Documents for Discovery and Inspection);
(12) Reply Affidavit of Joseph Vidal, sworn to August 17, 2017;
(13) Correspondence of Nancy Schulman, Principal Law Clerk, dated August 18, 2017.
1. Although defendant maintains that a "review of the motion papers file with the Court of Claims Clerk's [sic] reveals that the claimant failed to annex a copy of any discovery demands to the motion" (Gavin Affirmation, ¶ 2), claimant submitted the document demand and three notices of interrogatories with the filed motion (see Vidal Affidavit, Exhibits 2-3). Further, there appears to be no dispute that defendant was in possession of the disclosure demands and responded to the motion. Therefore, claimant's motion will not be denied on the ground that his motion papers were incomplete.