New York State Court of Claims

New York State Court of Claims
WALSH v. THE STATE OF NEW YORK, # 2020-041-017, Claim No. 131993, Motion No. M-95561


Claimant's motion to compel discovery of documents and information regarding non-parties and unrelated real property in claim alleging that defendant unreasonably revoked claimant/employee's revocable permit to occupy state-owned real property is granted in part and denied in part.

Case information

UID: 2020-041-017
Claimant(s): CRAIG WALSH
Claimant short name: WALSH
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131993
Motion number(s): M-95561
Cross-motion number(s):
Claimant's attorney: SUSSMAN & ASSOCIATES
By: Jonathan R. Goldman, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
By: Thomas J. Reilly, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 6, 2020
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves pursuant to CPLR 3124 for an order compelling defendant to produce documents and records in regard to his claim alleging that defendant breached an agreement permitting claimant/employee to reside in state-owned real property. Defendant opposes the claimant's motion.

The claim alleges that claimant was employed as a correction officer at Wallkill Correctional Facility for nineteen years and that "[f]or eight years, claimant with members of his family, resided in housing at the Wallkill Correctional Facility." The claim states that "state-supplied housing" was provided to claimant pursuant to "annual written contracts signed by him and the Superintendent of Wallkill Correctional Facility."

The claim further alleges that in "October 2017, the Superintendent of the facility . . . evicted him from the housing" without providing claimant a "good faith or reasonable explanation for her action."

The claim asserts that "state-provided housing was being misused, occupied by an employee who was working at a facility in NYC and that other units were vacant." The claim further states that claimant "lacked the financial resources to find comparable housing" and that the "Superintendent provided no reasonable basis for the exercise of her discretion in evicting claimant from this housing and did not claim that the eviction was for any cause like misconduct or termination [from employment]."

The claim alleges that the "Superintendent's baseless Order . . . broke the terms of the agreed upon lease and so caused claimant substantial emotional distress and hardship" and "economic and non-economic harm."

The claim, and the affirmation of claimant's attorney, characterize the claim as sounding in breach of contract based upon defendant "evicting claimant without cause from his state-supplied housing." The Court notes, however, that the document annexed to claimant's motion papers entitled "REVOCABLE PERMIT," upon which the purported breach of contract is based, does not require "cause" for the defendant's termination of the claimant's "privilege of occupancy." The Court further observes that the gravamen of the claim appears to be a challenge to the discretionary administrative determination of the defendant.

Subsequent to the deposition of the Wallkill Correctional Facility Superintendent, claimant made certain demands for documents and information from defendant. Defendant complied with some of claimant's demands and objected to others based upon "NY Civil Rights law section 50-a and Public Officers law section 96."

The disputed items of discovery are as follows:

"Request No. 1: Produce any documents sufficient to show the occupancy status of all State housing on the grounds of Wallkill Correctional Facility from January 1, 2017 to December 31, 2017, as discussed at pages 23-28 of Supt. Jacobsen's deposition transcript.

Request No. 2: Produce each and every Revocable Permit governing the occupancy of all State housing on the grounds of Wallkill Correctional Facility in effect at any time from January 1, 2017 to December 31, 2017, as discussed at pages 23-28 of Supt. Jacobsen's deposition transcript.

Request No. 3: Produce each and every wait list, and any iteration thereof, for State housing on the grounds of Wallkill Correctional Facility in existence between January 1, 2017 and December 31, 2017.

Request No. 4: Produce each and every written request for State housing on the grounds of Wallkill Correctional Facility submitted to Superintendent Jacobsen, Deputy Superintendent of Administration ("DSA") Deborah Fleury or any other administrator at Wallkill Correctional Facility from January 1, 2017 December 31, 2017.

Request No. 10: Produce Robert Milby's application for State housing at Wallkill correctional facility in 2017.

Request No. 11: Produce each and every communication or correspondence between Robert Milby and superintendent Jacobsen, DSA Fleury or any other administrator at Wallkill Correctional Facility concerning or relating to Mr. Milby's request for State housing at Wallkill Correctional Facility in 2017.

Request No. 16: Produce each and every notification sent to any individual prior to October 31, 2017 concerning or relating to a request or demand for such individual to vacate State housing at Wallkill Correctional Facility, as discussed at page 143 of Superintendent Jacobson's deposition transcript."

In opposing claimant's motion to compel, defendant asserts that "claimant was permitted to reside at a state owned residence near the Wallkill Correctional Facility under the terms of a revocable permit agreement" until October 2017 and that "claimant was terminated from DOCCS on January 5, 2018, which would have automatically triggered a revocation of his permit."

Defendant further points out that the revocable permit agreement, by which claimant was "living in a three-bedroom unit without his spouse and lived with no children," provided that the permit could be revoked at "the reasonable discretion of the Superintendent."

Superintendent Jacobsen testified that in approximately June or July 2017 she advised claimant that he should start looking for other housing accommodations because "Mr. Walsh was out on workmen's comp and we had been notified that the doctor was not going to clear him to return to employment with DOCCS." (Jacobsen Transcript pp. 45-46).

Defendant further cites to the deposition transcripts of claimant and Superintendent Jacobsen in noting that claimant was no longer "living with his estranged spouse or any minor children" and that by the end of September 2017 the Superintendent "made the determination to accommodate the housing needs of another employee who had a family."

The defendant notified claimant in writing on October 3, 2017 that it "has been determined by the Facility, that the unit you reside in is needed to house another Wallkill employee. Therefore, this letter will service as an official 30-day notice to vacate the premises." The Superintendent, at her deposition, explained that the "Wallkill employee" referenced in the October 3, 2017 notice to claimant "had a family" (Jacobsen Transcript p. 70) while claimant "was not living with a family. He was living by himself" (Jacobsen Transcript p. 76).

Defendant states that claimant was offered alternative housing accommodations but declined the offer.

Defendant opposes the claimant's demand for documents and records because "the records and personal information of public employees is protected by Public Officers Law section 96 and the information sought would have virtually no probative value in claimant's breach of contract action."

More broadly, defendant characterizes the disputed demands as "an intrusive fishing expedition."

The Court's inquiry is guided by the principle that it has "broad discretion in managing disclosure, and absent an abuse of discretion or unreasonable interference with the disclosure of relevant and necessary material," that discretion will not be disturbed (Czarnecki v Welch, 23 AD3d 914, 915 [3d Dept 2005]).

It is equally clear that "[w]hile disclosure provisions are to be liberally construed, the trial court is vested with broad discretion to supervise discovery and determine what is 'material and necessary' under CPLR 3101 (a)" (Mora v RGB, Inc., 17 AD3d 849, 851 [3d Dept 2005]). The standard of materiality is "one of usefulness and reason," with the goal of "sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).

Neither the allegations of the claim nor the affirmation of claimant's attorney cogently explain the manner in which the defendant allegedly violated the terms of the revocable permit, or how claimant's expansive discovery demands relating to non-parties and unrelated real property would generate evidence to prove that the defendant unreasonably terminated claimant's revocable permit.

Nevertheless, in view of the trial court's obligation to liberally construe disclosure provisions, and its broad discretion in determining relevance (Mora, 17 AD3d at 851), the Court directs as follows:

Defendant is ordered to disclose the requested documents to claimant's attorney with non-party names, addresses and all other identifying information redacted, in order to protect the privacy and security interests of the defendant's correctional facility employees and their families. In addition, claimant's attorney is ordered that the documents and records disclosed are to be used solely for the purpose of this claim to the extent necessary for the litigation of the claim, and shall be disclosed only to claimant, counsel, personnel employed to assist counsel, experts, court personnel, court reporters and/or monitors.

Claimant's motion for an order compelling defendant to produce certain documents and records is granted in part and denied in part as set forth above.

Claimant's time to file and serve a note of issue/certificate of readiness is extended to October 31, 2020.

August 6, 2020

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion, filed May 25, 2020;

2. Affirmation of Jonathan R. Goldman, dated May 22, 2020, with annexed exhibits;

3. Affirmation in opposition of Thomas J. Reilly, dated June 17, 2020, and annexed exhibits;

4. Reply Affirmation of Jonathan R. Goldman, dated June 22, 2020.