Claimant's motion to compel responses to discovery demands granted in part. Discovery demand was served on defendant, who failed to respond, and the demand was not palpably improper and did not seek confidential information. Motion to compel denied as unnecessary with respect to notice to admit, which is self-effectuating. Defendant's cross motion for a protective order denied inasmuch as defendant failed to demonstrate that the discovery sought was privileged, confidential, irrelevant, or could compromise facility security.
|Claimant(s):||JOSEPH B. FLOWER|
|Claimant short name:||FLOWER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JOSEPH B. FLOWER, pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 7, 2020|
|See also (multicaptioned case)|
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim seeking compensation for injuries sustained as the result of an alleged inmate-on-inmate attack at Green Haven Correctional Facility (CF) on July 2, 2015. Claimant now moves for an order compelling defendant to respond to certain discovery demands. Defendant opposes the motion and cross-moves for a protective order.
The claim alleges that on the morning of June 9, 2015, claimant informed Correction Officer Richardson "that he was affraid [sic] to return to his cell" after breakfast, and that he thereafter informed Sergeant Osborne that another inmate "had tried to cut him" with a razor blade the previous day and requested to be placed in protective custody (Claim No. 126765, ¶ 3). The claim alleges that Sergeant Osborne told claimant that he would not be placed in protective custody unless he could provide "information concerning drugs and weapons," and that Sergeant Osborne sent claimant back to his cell because claimant said he did not have such information (id.). The claim alleges that later on June 9, 2015, claimant spoke with his mental health counselor, who arranged for claimant to be placed on a "72 hour keeplock investigation" while the incident was investigated (id.). The claim alleges, however, that there was no investigation, and that claimant's attacker was not searched (see id.). The claim alleges that claimant was released from the "72 hour keeplock investigation" on June 12, 2015 (id.).
The claim alleges that on June 18, 2015, during an appearance before "a time allowance committee," claimant stated "that he was having some problems with some gang members and that [Sergeant] Osborne would not help him," and that "he feared for his safety," and he requested to be placed in protective custody (id. at ¶ 4). The claim alleges that claimant was informed by "a facility captain" at the hearing that another sergeant would interview claimant in his cell block, but that when claimant returned to his cell block, Sergeant Osborne was waiting there and had claimant sign a form requesting protective custody (id.). The claim alleges that claimant told Sergeant Osborne that he did not feel safe in the general prison population and asked when he would be moved into protective custody, and that Sergeant Osborne told claimant "that he would submit the request and it would take a few days" (id.). The claim alleges that Sergeant Osborne refused claimant's request to be placed in keeplock (see id.).
The claim alleges that on July 2, 2015, claimant was in the west side yard at Green Haven CF when he "was cut across the face with a razor blade by another inmate" (id. at ¶ 6). The claim alleges that claimant "was brought to medical after he showed the yard officers . . . a 4 inch laceration across his cheek and nose that was bleeding profusely," and that he was placed in protective custody after he received medical treatment and his injury was photographed (id.). The claim alleges that between June 9, 2015 and July 2, 2015, defendant "negligently . . . permitted claimant to remain in the general population despite numerous requests/attempts . . . by claimant to be moved to protective custody" (id. at ¶ 2), and that defendant "had actual notice that claimants [sic] safety was in danger" because claimant "had an extensive history of fights and incidents where [he] ha[d] been assaulted" (id. at ¶ 5). The claim alleges that "all of th[o]se incidents are on record," that claimant's requests to be placed in protective custody "should have been taken serious[ly]," and that claimant should have been moved into protective custody on June 9, 2015 or on June 18, 2015 (id.).
Claimant now moves for an order compelling defendant to respond to a discovery demand and a notice to admit dated October 2019 (see Claimant's Motion to Compel Discovery, sworn to January 15, 2020; see also Notice of Motion to Compel Discovery, sworn to January 15, 2020). Claimant asserts that he served those demands on defendant on October 22, 2019, that defendant did not respond or request an extension of time to respond within thirty days, and that defendant did not respond to claimant's December 2, 2019 letter stating that the responses were late and demanding an immediate response (see Declaration in Support of Motion to Compel Discovery, ¶¶ 2-5, Exhibits 1-3).(1) Claimant states that he sent a second letter to defendant on December 11, 2019 again requesting a response to his discovery demands, and that he filed a "request for entry of default" with the Clerk of the Court of Claims because he was never served with defendant's answer (id. at ¶ 5, Exhibit 4). Claimant avers that he "has attempted numerous times to resolve this matter, but the defendant refuses to respond to [his] correspondence and requests" (id. at ¶ 5).
In opposition to the motion to compel and in support of its cross motion for a protective order, defendant states that it filed its answer to this claim on October 22, 2015, that this claim was scheduled for trial before Hon. Thomas Scuccimarra in 2016, but that the trial was adjourned without date when claimant was re-incarcerated (see Rubinstein Affirmation, ¶¶ 3-4). Defendant states that in March 2017, claimant moved for summary judgment, and the motion was denied by Decision and Order dated April 7, 2017 (see id. at ¶ 5, Exhibit A). Defendant states that by letter dated May 23, 2017, the claim was again scheduled for trial, but that claimant was again re-incarcerated, and the claim was assigned to the Court of Claims prisoner pro se trial calendar in November 2017 (see id. at ¶ 6).(2) Defendant states that it received the discovery demands that are the subject of this motion in November 2019 (see id. at ¶ 7), and "opposes any disclosure at this procedural juncture" and argues that it is entitled to a protective order because "[c]laimant has had a full and fair opportunity to engage in the discovery process and his prior motion for summary judgment supports this position" (id. at ¶¶ 8-9).(3)
The CPLR provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]). 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 order" (CPLR 3124). Defendant has not disputed that it has failed to respond to claimant's discovery requests. Nevertheless, that part of claimant's motion seeking an order compelling responses to his two notices to admit will be denied. The CPLR permits a party to
"serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, . . . or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry"
(CPLR 3123 [a]). Within twenty days of the service of the notice to admit, or within such additional time as the court may allow, the adverse party may serve a sworn statement either denying the admissions requested, or setting forth in detail why the party cannot truthfully either admit or deny (see id.). A notice to admit pursuant to CPLR 3123 is self-effectuating; that is, where, as here, there is not a timely response to the notice to admit, the matters in the notice to admit are "deemed admitted" (id.), and the CPLR does not permit a motion to compel a response (see CPLR 3124; see also Loper v State of New York, UID No. 2014-038-538 [Ct Cl, DeBow, J., Aug. 20, 2014] ["a motion to compel a response to . . . a notice (to admit) is unnecessary and improper"]). Thus, to the extent claimant seeks an order compelling defendant to respond to his October 2019 notice to admit, his motion will be denied as unnecessary.
Turning to the motion insofar as it seeks an order compelling defendant to respond to the October 2019 discovery demand, defendant does not dispute that it failed to respond to the demand. Defendant's failure to raise objections within 20 days of service of a document demand (see CPLR 3122 [a] ) "foreclose[s] inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper" (Fausto v City of New York, 17 AD3d 520, 522 [2d Dept 2005]; see Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]; Griffith v State of New York, UID No. 2007-015-173 [Ct Cl, Collins, J., Apr. 4, 2007]; see also CPLR 3122 [a] , 3133 [a]). A discovery demand is palpably improper if it seeks information that is confidential and does not appear to be relevant to the issues in the case (see Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [3d Dept 2000]; Briand Parenteau, Inc. v Dean Witter Reynolds, 267 AD2d 576, 577 [3d Dept 1999]), or, as pertinent to this claim that arose in a correctional facility, if the demand seeks information that could compromise facility security if disclosed (see Williams v State of New York, UID No. 2005-032-005 [Ct Cl, Hard, J., Feb. 8, 2005]; Rodriguez v State of New York, UID No. 2005-009-063 [Ct Cl, Midey, J., Dec. 13, 2005]).
Claimant's October 2019 discovery demand seeks production of DOCCS policies and procedures related to an inmate request to be placed in protective custody, medical reports, log book entries related to claimant dated June 9, 2015 and June 18, 2015, documentation of claimant's requests to be placed in protective custody and the July 2, 2015 incident, and claimant's mental health records (see Declaration in Support of Motion to Compel Discovery, Exhibit 1). In support of its cross motion to compel, defendant does not argue that the documents sought in the October 2019 demand are privileged, confidential, irrelevant, or that they could compromise facility security, but merely that claimant should be foreclosed from seeking additional discovery at this late stage in the litigation.(4) In the Court's view, the October 2019 document demand does not, on its face, appear to be immaterial or unnecessary to the prosecution of this claim, but rather appears to be related to the allegations in the claim with regard to claimant's attempts to be placed in protective custody and to his alleged injuries. The Court concludes, therefore, that defendant has not met its burden of demonstrating that it is entitled to a protective order with respect to the October 2019 discovery demand, and defendant's borderline frivolous cross motion for a protective order with respect to that demand is denied. Finally, to the extent defendant's cross motion seeks a protective order with respect to the October 2019 notice to admit, as noted above, because defendant failed to respond within twenty days, the matters contained therein are deemed admitted, and the motion for a protective order will be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-95201 is GRANTED IN PART, and defendant shall, within twenty (20) days of the date of filing of this decision and order, respond to claimant's discovery demand dated October 2019; and it is further
ORDERED, that claimant's motion number M-95201 is DENIED in all other respects; and it is further
ORDERED, that defendant's cross motion number CM-95373 is DENIED.
July 7, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 126765, filed September 17, 2015;
2. Verified Answer, filed October 22, 2015;
3. Claimant's Motion to Compel Discovery, sworn to January 15, 2020;
4. Notice of Motion to Compel Discovery, sworn to January 15, 2020;
5. Declaration in Support of Motion to Compel Discovery, sworn to January 15, 2020, with Exhibits 1-4;
6. Notice of Cross Motion, dated March 3, 2020;
7. Affirmation of Heather R. Rubinstein, AAG, in Opposition to Motion [to] Compel Disclosure and Cross Motion for Protective Order, with Exhibit A.
1. Claimant avers that he served the discovery demand and notice to admit on defendant on October 22, 2019, and that the original copies of his discovery demand and notice to admit were dated and notarized and were accompanied by an affidavit of service, but that the documents were lost when he sent them to the facility law library to be copied (see Declaration in Support of Motion to Compel Discovery, ¶¶ 2, 7). Claimant states that he has provided handwritten reproductions of those demands, which are dated simply "October 2019" and which he avers are "the same requests that are on file" (id.,¶ 7; see id., Exhibits 1-2). Although claimant has failed to include an affidavit of service to substantiate his assertion that he served defendant with those demands, defendant has conceded that it was served with the demands in November 2019.
2. Defendant indicates that the letter dated May 23, 2017 scheduling this claim for trial is attached as an exhibit to the affirmation in support of the cross motion (see Rubinstein Affirmation, ¶ 6). However, only one exhibit - the April 7, 2017 Decision and Order of Hon. Stephen J. Mignano denying claimant's motion for summary judgment - is appended to the affirmation.
3. Defendant also argues that it is entitled to immunity with respect to the decision to deny claimant's request to be placed in protective custody (see Rubinstein Affirmation, ¶¶ 10-12). However, defendant has not moved to dismiss the claim on that basis, and the Court will not address that argument in connection with the cross motion for a protective order.
4. The Court notes that claimant, as an incarcerated pro se litigant, is not required to file a Note of Issue and Certificate of Readiness for trial (see 22 NYCRR § 206.12 [a]), and thus discovery of this claim has not been concluded. Defendant has not cited any decisional law in support of its contention that claimant is precluded from seeking discovery at this procedural juncture.