New York State Court of Claims

New York State Court of Claims
MYERS v. THE STATE OF NEW YORK, # 2018-015-166, Claim No. 121690, Motion No. M-92456


Claimant's motion to compel discovery was denied except to the extent of requiring the exchange of certain witness information and a privilege log.

Case information

UID: 2018-015-166
Claimant(s): KEVIN MYERS, as the Administrator for the Estate of M.M.
Claimant short name: MYERS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 121690
Motion number(s): M-92456
Cross-motion number(s):
Claimant's attorney: Law Offices of Elmer Robert Keach, III, P.C.
By: Elmer Robert Keach, III, Esq.
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: G. Lawrence Dillon, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 26, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves to compel discovery pursuant to CPLR 3124.

Claimant is the administrator of the estate of his son who he alleges was the victim of repeated rapes and sexual assaults by a Youth Division Aide between the period January 1, 2009 and January 31, 2009. At the time of the alleged conduct, claimant's son was 13 years of age and a resident of the Tryon Residential Treatment Center in Johnstown, New York.(1)

Claimant now seeks an Order compelling a response to his Combined Discovery Demands dated January 22, 2018 (claimant's Exhibit D). Defense counsel responded to claimant's Combined Demands on April 18, 2018 indicating: that witness information would be provided upon the scheduling of a trial; that there are no known photographs or videotapes; that IAB reports and New York State Police reports are confidential and IAB reports and statements are privileged under Social Services Law 422 (claimant's Exhibit E). In opposition to the instant motion, defense counsel also raises as grounds for objection Executive Law 501-c and Public Officers Law 96. Defense counsel has failed to identify what records exist and the corresponding basis of the objection for each of those records.

First, to the extent defendant opposes the motion in reliance upon claimant's purported failure to comply with the 90-day demand, dated June 13, 2018, which was served by the Court, the contention lacks merit. By Order dated June 27, 2018, the 90-day demand was vacated and the time to complete discovery and file the Note of Issue was extended to October 31, 2018.

With respect to claimant's counsel's request for witness information, defendant's response that such information will be provided upon the scheduling of the trial is inappropriate (see CPLR 3122). Defendant is therefore directed to provide a response to this request within 30 days of the date the instant Decision and Order is filed.

With respect to claimant's demands for various reports and statements, no argument for or against disclosure can be made until the defendant identifies the type of documents in existence; the general subject matter of the documents; the date of the documents; and such other information as is sufficient to identify the document for a subpoena duces tecum (CPLR 3122 [b]; see Abraha v Adams, 148 AD3d 1730 [4th Dept 2017]; Baliva v State Farm Mut. Auto. Ins. Co., 275 AD2d 1030 [4th Dept 2000]). Accordingly, defendant is directed to ascertain whether the records and information requested in Claimant's Combined Discovery Demands dated January 22, 2018 exist and provide the claimant with a privilege log specifying the information required by CPLR 3122 (b) within 30 days of the date this Decision and Order is filed.

Accordingly, the instant motion is denied, except to the extent indicated, with leave to renew within 30 days of the date the privilege log is received by the claimant. Upon renewal, if any, the defendant is directed to provide the Court with a copy of its privilege log, together with the copies of any records withheld, for in camera review (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378 [1991] [whether a particular document is or is not protected is necessarily a fact-specific determination, most often requiring in camera review]). In the event redactions are requested by the defendant, defense counsel is directed to provide the Court with two sets of records, one with its proposed redactions and one without redactions.

The parties are Ordered to complete discovery and claimant is directed to file and serve the Note of Issue and Certificate of Readiness for Trial on or before February 28, 2019.

September 26, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of motion, dated June 22, 2018;
  2. Affirmation in support, dated June 22, 2018, with Exhibits A - J;
  3. Order dated June 27, 2018;
  4. Affirmation in response, dated July 2, 2018, with Exhibits A and B.

1. Claimant's son died of an alleged drug overdose in 2016.