Claimant's motion to compel discovery denied as premature. Claimant failed to demonstrate that a discovery demand was previously served on defendant.
|Claimant short name:||C.G.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||C.G., Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 29, 2019|
|See also (multicaptioned case)|
Claimant pro se, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries sustained as the result of an alleged assault and battery, medical malpractice, and failure to protect him from sexual assault at Green Haven Correctional Facility (CF) on July 31, 2018. Claimant moves for an order compelling defendant to provide him with certain items of discovery. Defendant opposes the motion on the ground that claimant has failed to support his motion with a sworn affidavit, and it is premature because the Attorney General was never served with a discovery demand.
A motion for a court order compelling disclosure is authorized only "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or [discovery] order" (CPLR 3124). If claimant does not demonstrate that the motion has been preceded by service of a discovery demand or request and that the party served has failed to adequately comply with the discovery request, the motion to compel will be denied as premature (see Keitt v State of New York, UID No. 2018-038-532 [Ct Cl, DeBow, J., Apr. 6, 2018]; Dorcinvil v State of New York, UID No. 2018-038-564 [Ct Cl, DeBow, J., June 27, 2018; Perez v State of New York, UID No. 2016-018-729 [Ct Cl, Fitzpatrick, J., July 20, 2016]).
Claimant's bare, unsupported motion(2) states merely that he "would not [receive] Discovery by request" and thus has filed this motion seeking disclosure of (1) inmate disciplinary hearing tapes, (2) camera footage from the Special Housing Unit (SHU) at Green Haven CF, and (3) claimant's own MHU records from June 18, 2018 to February 27, 2019 (see Motion Request for Discovery, ¶ 1). In opposition, defendant asserts that "[a] review of the file and computer system maintained" by the Attorney General's Office "reveal[ed] that . . . claimant failed to serve [defendant] with any discovery requests prior to the receipt of [the instant] motion" and that "the motion fails to annex any discovery requests or proof of service of any requests" (Gavin Affirmation in Opposition to Motion for Discovery, ¶ 3).
Claimant has failed to demonstrate that he served any discovery demand or request on defendant prior to making the instant motion. In fact, in his brief submission, claimant apparently concedes that he has chosen to proceed by way of motion rather than simply serving a discovery request on defendant. Thus, his motion must be denied as premature inasmuch as a party must first make a discovery demand or request prior to filing any discovery motion, and then, if compliance with the demand or request is incomplete or inadequate, seek court intervention.
Accordingly, it is
ORDERED, that claimant's motion number M-94243 is DENIED.
August 29, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Amended Claim No. 131938, filed September 21, 2018;
2. Motion Request for Discovery, dated May 27, 2019;
3. Affirmation of Elizabeth A. Gavin, AAG, in Opposition to Motion to Compel Discovery, dated August 5, 2019, with Exhibit A.
1. The caption has been amended pursuant to Civil Rights Law § 50-b to grant claimant anonymity inasmuch as the claim alleges that claimant is the victim of a sexual offense, as defined in Article 130 of the Penal Law.
2. In the Court's view, the lack of a sworn affidavit in support of claimant's motion is pertinent to his failure to demonstrate that he served a discovery demand on defendant prior to making the instant discovery motion and not, as defendant argues, an independent basis upon which to deny claimant's motion.