|Claimant short name:||WASHINGTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. LYNCH|
|Claimant's attorney:||Donald Washington, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Darren Longo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 6, 2019|
|See also (multicaptioned case)|
Claimant, an inmate appearing pro se, moves pursuant to CPLR 3126 for sanctions against defendant due to its failure to respond to the previous order of this Court compelling responses to claimant's discovery demands. Defendant opposes the motion.
Claimant first served his demand for documents and interrogatories on August 29, 2018. Having not received any response, he sent letters to defendant on October 8, 2018 and November 1, 2018 inquiring as to the status but did not receive a reply. Claimant filed a motion to compel responses to his discovery demands on November 28, 2018, which was denied on procedural grounds (see Decision and Order dated January 9, 2019); in its opposition to that motion defendant stated that it was merely waiting for documents and information and would respond as soon as possible (see Affirmation in Opposition by Darren Longo dated December 10, 2018). Still, claimant did not receive any discovery responses from defendant and so filed a second motion to compel on March 4, 2019, which was unopposed by defendant. Defendant was thereafter ordered to respond to claimant's demands by July 20, 2019 (see Decision and Order dated April 25, 2019).
On July 22, 2019, defendant served a partial response, providing two of three requested documents and stating the third would be provided "as soon as it is available." Defendant failed to respond to claimant's four relevant and clearly stated interrogatories. On August 2, 2019 - almost a year after initially serving his discovery demands - claimant filed the instant motion for sanctions to resolve all relevant issues not responded to by defendant in claimant's favor, for an order precluding defendant from offering evidence at trial and for fees and expenses incurred by having to repeatedly involve the Court to gain access to discovery materials he is entitled to.
Defendant argues that it was "unable to get responses at the facility level, and so had to seek out the head of dentistry for the New York State Department of Corrections and Community Supervision" and expected to submit responses to claimant's interrogatories before September 11, 2019 (see Affirmation of Darren Longo dated August 28, 2019). On or about September 23, 2019 defendant apparently served its responses to interrogatories.(1)
To date defendant has not responded to claimant's third document request which was for the "Wende Correctional Facility G-Block housing unit log book entry on December 15, 2017, reflecting the report of injury by Donald Washington (07-B-0637), regarding an impacted tooth (or tooth that fell out) and bleeding gums" (see claimant's exhibit C). Defendant did not object to this request and indeed, in its July 22, 2019 partial discovery response, stated that the requested document would be provided "soon." Despite a Court order to provide the document by July 20, 2019 defendant still has not done so to date.
It is well-settled that CPLR 3126 authorizes a court to penalize a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." "The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the motion court" (Martin v City of New York, 46 AD3d 635 [2d Dept 2007]). Although not expressly set forth as a sanction under CPLR 3126, it has been "held that the imposition of a monetary sanction under CPLR 3126 may be appropriate to compensate counsel or a party for the time expended and costs incurred in connection with an offending party's failure to fully and timely comply with court-ordered disclosure" (Lucas v Lawrence Stam, Susan Gordon, Martin Clearwater & Bell, LLP, 147 AD3d 921 [2d Dept 2017]). Indeed, the discretion afforded by CPLR 3126 has been used by a judge of this Court to personally fine an assistant attorney general (see Kulers v State of New York, 141 Misc 2d 1079).
Here, claimant has been forced to make three motions to obtain disclosure he is entitled to, the resources of this Court have been needlessly used and still claimant has not received a response to a relevant and narrowly tailored document request, despite this Court having ordered defendant's compliance.
Therefore, based on the foregoing, claimant's motion is granted to the extent that he is awarded $250.00 in costs and an adverse inference will be found at trial regarding the missing log book entry. The remainder of claimant's motion - for an order determining that all issues in his case be deemed resolved in his favor and precluding defendant from offering evidence at trial - is denied.
December 6, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on claimant's motion:
1. Notice of Motion, Affidavit with Exhibits.
2. Attorney Affirmation.
3. Claimant's Reply.
4. Attorney Affirmation filed November 20, 2019.
1. Defendant submitted an affirmation of Assistant Attorney General (AAG) Darren Longo dated November 18, 2019 - well past the August 28, 2019 return date on this motion - which states that he served the interrogatory responses but does not state when he did so. No affidavit of service was provided but presumably it was on or about the date AAG Longo executed the cover letter to those responses: September 23, 2019. Defendant's responses were woefully late and well beyond the July 20, 2019 deadline imposed by order of this Court. Nevertheless, the Court takes notice of this late submission as it renders part of claimant's motion moot.