New York State Court of Claims

New York State Court of Claims
LOPEZ v. THE STATE OF NEW YORK, # 2019-059-015, Claim No. 128583, Motion No. M-94348


Case information

UID: 2019-059-015
Claimant(s): ERNESTO LOPEZ
Claimant short name: LOPEZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128583
Motion number(s): M-94348
Cross-motion number(s):
Claimant's attorney: ERNESTO LOPEZ, pro se
By: Dorothy M. Keogh, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 7, 2019
City: Central Islip
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim by an inmate, Ernesto Lopez ("Claimant" or "Lopez"), who is appearing pro se, alleging that the defendant's ("Defendant" or "State") agents failed to protect him from an assault by a fellow inmate in the recreational yard ("HBB Yard") of the Sing Sing Correctional Facility. More specifically, Lopez alleges that on September 15, 2015 between 9:00 p.m. to 9:15 p.m. during his return from evening yard recreation he was attacked by an unknown inmate with a sharp metal object, resulting in a four-inch laceration from his left earlobe to under his chin. He asserts that he was injured because no corrections officers were at their assigned posts at the time of the attack and that his injury was not observed until he returned to his housing unit because of the absence of the officers from their posts.

On or about December 28, 2016 Claimant sought discovery of video surveillance tapes, the name(s) of the officers assigned to the yard area at the time of the incident, a copy of the log book entries covering "incidents where inmates were assaulted, cut and stabbed in the HBB yard . . . from . . . January to September of 2015." Defendant objected to the production and as a result Claimant brought a motion which the Court treated as a motion to compel pursuant to CPLR 3124 and 3126.

By prior decision and order filed on March 14, 2019 (motion no. M-92375), the Court directed Defendant to comply with Claimant's discovery demands within forty days of the date of filing of the order. More specially, the State was directed to 1) produce for in camera inspection the surveillance tape and if one did not exist, an affidavit of a person with knowledge of the Sing Sing video surveillance and the retention policies was to be provided; 2) provide Claimant with the identities of the corrections officers assigned to posts indicated; and 3) produce for in camera inspection legible copies of the log book entries for prior incidents of assaults on other inmates from January to September 15, 2015. The materials submitted for in camera inspection were to be "certified as to contents and scope by the agency providing them, paginated for ease of reference, and accompanied by a detailed privilege log."

The State did not comply. Claimant then filed the instant motion for sanctions on July 12, 2019, which is being treated as a motion pursuant to CPLR 3126. On August 1, 2019, Defendant mailed a letter to the Court copied to Claimant enclosing an affidavit attesting that no surveillance was conducted and that as a result no video exists, listing the names of the corrections officers assigned at the relevant posts at the specified times and certified copies of logbook pages from the HBB Yard on the date of the alleged incident. Defendant also requested an adjournment of six more weeks to review the log books to find assaultive incidents from January to September 15, 2015, which the Court granted. The instant motion was adjourned to October 2, 2019.

On August 13, 2019 Defendant sent unredacted logbook pages reporting HBB Yard assaults which occurred from January to September 15, 2015 to the Court. The Court made redactions and chambers sent the redacted pages to the Claimant and Defendant on September 11, 2019. Thereafter, Defendant sent its proposed redactions to the Court. A privilege log was not provided. Defendant then filed opposition to Claimant's motion on September 25, 2019 asserting that sanctions should not be imposed because it now had complied with the prior order of the Court and that the delay was neither willful nor contumacious.

The Court "has broad discretion in making determinations concerning matters of disclosure" (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 209 [2d Dept 2012], citing Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843 [2008]), and may impose sanctions "where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious" (id., at 210, citing Commisso v Orshan, 85 AD3d 845, 845 [2d Dept 2011]). While the "'failure to comply with deadlines and provide good-faith responses to discovery demands 'impairs the efficient functioning of the courts and the adjudication of claims'" (id., at 209, quoting Kihl v Pfeffer, 94 NY2d 118, 123 [1999]), here the State's failure to comply with the deadline set forth in the Court's order was corrected by its substantially compliant response. The imposition of the sanctions provided in CPLR 3126 such as striking the answer, etc., would not be appropriate given that "public policy strongly favors the resolution of actions on the merits wherever possible" (id., at 209). However, in order to avoid prejudice to Claimant due to Defendant's delay in complying with the Court's order, the trial of this matter that had been scheduled for October 29, 2019 is adjourned to November 21, 2019, without prejudice to Claimant's further request for an adjournment in order to prepare for trial. Furthermore, Defendant is hereby ordered to provided a copy of the privilege log to Claimant within fifteen days of the filing of this order.

Accordingly, Claimant's motion for sanctions is hereby denied.

October 7, 2019

Central Islip, New York


Judge of the Court of Claims