Claimant's motion to compel responses to discovery demands denied as premature for failure to demonstrate that demands were served on defendant prior to filing the motion to compel.
|Claimant short name:||G.C.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||G.C., pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: No Appearance
|Third-party defendant's attorney:|
|Signature date:||July 9, 2020|
|See also (multicaptioned case)|
Claimant, who is currently an inmate in a State correctional facility, filed this claim seeking compensation for injuries he sustained when he was allegedly sexually assaulted by fellow inmates while he was incarcerated at Green Haven Correctional Facility (CF). Claimant now moves to compel responses to certain discovery demands. Defendant has not opposed the motion, which will be denied for the reasons that follow.
The claim alleges that on the afternoon of September 29, 2019, claimant was sexually assaulted by four unidentified inmates (Claim No. 134052, ¶ 2). The claimant alleges that "[c]laimant's Eighth and Fourteenth Amendments were violated based on Negligence, Cruel and unusual punishment, failure to protect, and deliberate indifference to . . . [c]laimant's safety and well-being" (id. at ¶ 4), and asserts causes of action for deliberate indifference and negligence (see id. at ¶¶ 5-10).
Claimant now moves for an order compelling defendant to respond to a combined demand for discovery of certain documents - including written reports and statements related to the alleged assault, photographs of claimant's injuries, and a recording of a protective custody hearing - and a notice to admit dated January 22, 2019 (see Notice of Motion, unenumerated attachments [Claimant's Demand for Discovery and Admission]). 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]; Dorvincil 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]).
In support of his motion to compel, claimant has submitted only a notice of motion in which he indicates that he is seeking a response to the attached demand for discovery and admission (see Notice of Motion). The demand indicates that it was copied on the Attorney General's Office (see id., unenumerated attachments [Claimant's Demand for Discovery and Admission, unnumbered page 2]), but the demand is unaccompanied by an affidavit of service. Moreover, the notice of motion and discovery demand are both dated January 22, 2020, and the affidavit of service accompanying the motion is sworn to the same day and indicates that the notice of motion and discovery demand were served on the Attorney General on that date (see Affidavit of Service of G.C., sworn to Jan. 22, 2020). Accordingly, claimant has failed to demonstrate that he served the discovery demand prior to making the instant motion, and claimant's own submissions appear to indicate that the demand for discovery and admissions that is the subject of this motion was served on defendant for the first time with this motion. Thus, claimant's motion must be denied as premature inasmuch as prior to any motion seeking to compel the production of discovery, a party must first make a discovery demand or request and then, if compliance with the demand or request is incomplete or inadequate, seek court intervention.(2)
Accordingly, it is
ORDERED, that claimant's motion number M-95242 is DENIED.
July 9, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 134052, filed November 27, 2019;
2. Notice of Motion, dated January 22, 2020, with unenumerated attachments;
3. Affidavit of Service of G.C., sworn to January 22, 2020.
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. A motion seeking to compel a defendant to answer a notice to admit would be denied as improper and unnecessary under CPLR 3123 (see Loper v State of New York, UID No. 2014-038-538 [Ct Cl, DeBow, J., Aug. 20, 2014]).