Claimant's Motion to produce a copy of food production facility safety sheet denied without prejudice.
|Claimant short name:||KNOWLIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||ASTA & ASSOCIATES, PC
By: Michael J. Asta, Esq.
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: G. Lawrence Dillon, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 14, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Claimant's Motion for an order directing Defendant to produce a copy of the "Food Production Facility Safety Sheet" for former inmate Anthony Johnson is denied without prejudice.
This Claim, which was filed with the office of the Clerk of the Court on October 7, 2016, asserts that, on February 25, 2014, at approximately 6:30 a.m., while incarcerated at Mohawk Correctional Facility (hereinafter, "Mohawk"), Claimant was working in the "Quick Chill Cooking Facility" at Mohawk when his right hand was crushed by a cage loaded with chickens that was lowered onto his hand by a fellow inmate (Claim, ¶ 2). It is asserted that the State was negligent in the ownership, operation, maintenance, and supervision of Mohawk as the State failed to provide a safe place for Claimant to work, failed to properly instruct the inmates on the proper use of a crane that controlled the cage that fell on Claimant, and failed to warn him of the dangers of the cage (id.).
Claimant seeks to have Defendant produce the "Food Production Facility Safety Sheet" for former inmate Anthony Johnson, who Claimant asserts worked with him on the date of the accident (Affirmation of Michael J. Asta, Esq. [hereinafter, "Asta Affirmation"], ¶¶ 2 & 5, and Ex. D [partial transcript of deposition testimony], p. 65, attached thereto). It appears that Mr. Johnson was operating the crane at the time of Claimant's injury.
At a deposition held on February 12, 2018, Defendant's witness, Richard Stanek, the head cook at Mohawk (Ex. E [partial transcript of deposition testimony], p. 4, attached to the Asta Affirmation ) testified that he would train the inmates who were assigned to work in the kitchen and then he filled out a training form for each inmate (id., pp. 20-21). Mr. Stanek also stated at his deposition :
Q. … Have you ever heard of an inmate named Anthony Knowlin?
Q. And how about Anthony Johnson?
A. I know I had Johnson. I don't know which one it is.
(id., p. 56).
Claimant asserts that Defendant refused to produce the "Food Production Facility Safety Sheet" for Anthony Johnson, as it cannot disclose the records of a non-party inmate without a court order (Asta Affirmation, ¶ 7).
In response to Claimant's Motion, Defense counsel sent a letter to Claimant's counsel, dated June 22, 2018(1) . The letter dates in pertinent part:
In anticipation of the Court's order compelling production of that information you request for inmate Anthony Johnson, we have begun an inquiry. Unfortunately, based upon our search, there was no inmate named Anthony Johnson that was housed at Mohawk Correctional Facility, working in the Food Production Center. Accordingly, even if the Court were to compel the State to produce such a record, there is no record to produce.
"It is well settled that a trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]; see Lamagna v New York State Assn. for Help for Retarded Children, 222 AD2d 559, 559-560 [2d Dept 1995]; Cruzatti v St. Mary's Hosp., 193 AD2d 579, 580 [2d Dept 1993]). It is axiomatic that "a party cannot be compelled to produce documents that do not exist" (Castillo v Henry Schein, Inc., id.). In such cases, however, the Court concludes that Claimant "is entitled to a detailed statement, made under oath, by an employee or officer with direct knowledge of the facts as to the past and present status of the sought documents" (Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000]; see Orner v Mount Sinai Hosp., 305 AD2d 307, 310 [1st Dept 2003]; Wilensky v JRB Mktg. & Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]). As it appears that a "Food Production Facility Safety Sheet" does not exist for Anthony Johnson, Defendant is to provide the affidavit to Claimant within thirty (30) days of the date of filing of this Decision and Order. In addition, Defendant is to advise Claimant, if there was any inmate named Johnson, who was housed at Mohawk and was working in the Food Production Center at the time of Claimant's accident, and, if so, to provide the first name of each such inmate to Claimant within the above time frame.
August 14, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion to compel:
Notice of Motion, Affirmation
& Exhibits Attached 1
Letter from Defense Counsel dated
June 22, 2018 2
Filed Papers: Claim, Answer
1. (and provided a copy to the Court.)