Claimant's motions to compel discovery granted in part and denied in part.
|Claimant(s):||LEO A. MARINO|
|Claimant short name:||MARINO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-92742, M-93173|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Leo A. Marino, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Michael C. Rizzo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 3, 2019|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed the instant claim on September 5, 2014, seeking damages for injuries sustained as the result of an alleged assault that took place at Coxsackie Correctional Facility on December 2, 2013. Presently before the Court are two motions filed by claimant relating to discovery in this matter.
CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (see Wiggins v Kopko, 105 AD3d 1132, 1134 [3d Dept. 2013]; Murphy v Hamilton, 90 AD3d 1294, 1295 [3d Dept. 2011]). Where a party "fails to respond to or comply with any request, notice, interrogatory, demand, question or order . . . , the party seeking disclosure may move to compel compliance or a response" (CPLR 3124). However, "[a] party is not obligated to provide unlimited, uncontrolled and unfettered disclosure" (Gutierrez v Trillium USA, LLC, 111 AD3d 669, 672 [2d Dept. 2013] [internal quotation marks and citation omitted]), and "those demands which are unduly burdensome or lack specificity or seek privileged matter or seek irrelevant information or are otherwise improper must be denied" (Capoccia v Spiro, 88 AD2d 1100, 1101 [3d Dept. 1982], appeal dismissed 57 NY2d 774 ; see Slate v State, 267 AD2d 839, 841 [3d Dept. 1999]).
Motion No. M-92742
First, claimant seeks to compel defendant to produce approximately 30 grievances filed prior to the alleged incident in order to show that the attack was in retaliation for previously filed grievances. Defendant has objected to this demand as overbroad and unduly burdensome, and thus palpably improper. Defendant instead provided to claimant a printout of all grievances filed by claimant during the 2013 calendar year (Rizzo Aff., Exhibit D). Nothing in the record indicates that the information contained in the grievances themselves is relevant to the matters raised in the claim, or is "reasonably calculated to lead to evidence relevant" to the claim (see Jordan v Blue Circle Atl., 296 AD2d 752, 753 [3d Dept. 2002]). Defendant has raised valid objections to this particular demand, therefore claimant's motion to compel is denied as to his request for approximately 30 previously filed grievances.
Next, claimant seeks to compel defendant to provide the medical records of the correction officers involved in the alleged assault. In order to review the medical records of these correction officers, claimant must first demonstrate that the defendant has put the correction officers' medical conditions "in controversy" (Koump v Smith, 25 NY2d 287, 291-291 ). The medical condition of a party involved in litigation is "in controversy" and the physician-patient privilege applicable to the medical records is waived when "that person has affirmatively placed his or her mental or physical condition in issue" (Dillenbeck v Hess, 73 NY2d 278, 287 ). Thus, a defendant may put their medical condition "in controversy" by asserting the medical condition "either by way of counterclaim or to excuse the conduct complained of by the [claimant]" (Koump v Smith, 25 NY2d at 294). Here, claimant has not demonstrated that defendant has "affirmatively placed [the correction officers'] mental or physical condition in issue" (Dillenbeck v Hess, 73 NY2d 278, 287 ), therefore claimant's motion to compel is denied as to his request for the medical records of the correction officers involved in the assault. Insofar as claimant seeks his own medical records, defendant has indicated that it will provide mental health records after it receives a signed authorization from claimant, and that it has already provided claimant with his own non-mental health medical records.
Claimant also seeks multiple Department of Corrections and Community Supervision (DOCCS) Directives. Defendant provided certain Directives, but objected to the production of the Use of Force and Video Surveillance Directives on the ground that production of those Directives would compromise facility security. Based upon the allegations contained in the claim, such Directives may be relevant. Accordingly, the Court will order that the Use of Force and Video Surveillance Directives sought by claimant be produced to the Court for an in camera review (see Barnes v State of New York, UID No. 2008-037-012 [Ct Cl, Moriarty, J., Apr. 7, 2008]). Defendant shall also provide the Court with proposed redactions (see Ohnmacht v State of New York, 23 Misc 3d 1134[A], 2009 NY Slip Op 51100[U], *2 [Ct Cl 2009]).
Claimant also moves to compel the production of the inmate property claim form relevant to the claim. Defendant provided claimant with a copy of his inmate property claim form on December 15, 2015 (Rizzo Aff., Exhibit C). Therefore, this request is denied. Claimant also seeks the production of his disciplinary hearing tape and related documents. Defendant advised claimant on December 15, 2015 that no such tape or documents existed because a hearing never took place regarding the misbehavior report issued to claimant following the December 2, 2013 incident (id.). Because the Court cannot order the production of a disciplinary hearing tape of a disciplinary hearing that did not take place, this request is also denied.
Lastly, claimant moves to compel the production of the video tape of the hallway between the Mess Hall and C-Block for the date and time that the alleged assault occurred on December 2, 2013. In response, defendant provided claimant with a statement from the Inmate Record Coordinator at Coxsackie C.F., stating that "[n]o video tapes exist of the route from C-Block to the Mess hall on 12/3/13." (Rizzo Aff., Exhibit G). First, the Court notes that the Inmate Record Coordinator's statement recites the incorrect date of the video footage sought by claimant. Secondly, the Court notes that claimant filed a motion for sanctions (M-93172) in which he seeks a Court order for sanctions against defendant for its allegedly willful destruction of the relevant video tape footage. Defendant has not responded to the motion for sanctions despite stating in its opposition papers for motion number M-92742 that it would "further address the issue of videotapes" in the event that claimant moved for spoliation sanctions. In consideration thereof, the Court orders defendant to respond to claimant's motion for sanctions (M-93172) no later than 30 days following the filing date of this Decision and Order. Motion number M-93172 shall be held in abeyance until the Court receives defendant's response.
Motion No. M-93173
Claimant moves to compel the production of the personnel records of the correction officers involved in the alleged assault. Personnel records of correction officers are privileged under Civil Rights Law § 50-a, and may only be released where "a legitimate need for them has been demonstrated sufficiently to obtain a court order, generally upon a showing that they are actually relevant to an issue in a pending proceeding" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155 ). In that regard, the personnel records of correction officers are only relevant to claims of assault where the claim contains an allegation of negligent hiring, training, or supervision (Kourtalis v City of New York, 191 AD2d 480, 481 [2d Dept. 1993]; cf. Kerzhner v G4S Govt. Solutions, Inc., 138 AD3d 564 [1st Dept. 2016]; Pickering v State of New York, 30 AD3d 393 [2d Dept. 2006]). Here, the claim contains no allegations of negligent hiring, training, or supervision, and thus claimant has failed to establish a "factual predicate" justifying intrusion into the personnel records of the correction officers (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept. 2001], quoting People v Gissendanner, 48 NY2d 543, 550 ). Therefore, claimant's motion to compel the production of the personnel files of the correction officers involved in the alleged assault is denied.
Based upon the foregoing it is hereby
ORDERED that claimant's motion to compel the production of certain documents (M-92742) is granted in part and denied in part as set forth above; and it is further
ORDERED that defendant shall provide the Court with both redacted and unredacted copies of the Use of Force and Video Surveillance Directives sought by claimant within thirty (30) days of the filing date of this Decision and Order; and it is further
ORDERED that defendant shall respond to claimant's motion for sanctions (M-93172) no later than 30 days following the filing date of this Decision and Order. Motion number M-93172 shall be held in abeyance until the Court receives defendant's response; and it is further
ORDERED that claimant's motion to compel the production of personnel records (M-93173) is DENIED in its entirety.
April 3, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on September 5, 2014.
2. Notice of Motion to Compel, dated August 20, 2018; and Affidavit in Support of Motion to Compel Discovery, sworn to by claimant on August 20, 2018, with Exhibits.
3. Affidavit in Opposition, sworn to by Michael C. Rizzo, AAG on October 24, 2018, with Exhibits A through G annexed thereto.
4. Affidavit in Opposition to Defendant's Answer to Motion to Compel Discovery, sworn to by claimant on November 12, 2018.
5. Notice of Motion, dated November 12, 2018; and Affidavit in Support of Motion to Compel, sworn to by claimant on November 12, 2018.