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New York State Court of Claims

New York State Court of Claims
D.G. v. THE STATE OF NEW YORK, # 2021-038-536, Claim No. 127115, Motion No. M-96728


Claimant's motion to compel defendant to respond to his discovery demand denied. Information sought in the demand was more properly the subject of a bill of particulars and, in any event, defendant responded to the demand with discovery relevant to the claim, and claimant does not argue that the response was deficient.

Case information

UID: 2021-038-536
Claimant(s): D.G.(1)
Claimant short name: D.G.
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127115
Motion number(s): M-96728
Cross-motion number(s):
Claimant's attorney: D.G., 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: June 28, 2021
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that he was physically assaulted by a correction officer during a search of his cell at Green Haven Correctional Facility (CF) on September 16, 2014. Claimant now moves for an order to compel defendant to respond to a demand for certain items of discovery. Defendant opposes the motion, which will be denied for the reasons that follow.

The claim alleges that on the evening of September 16, 2014, two unidentified Correctional Emergency Response Team (CERT) officers removed claimant from his cell at Green Haven CF in order to perform a search of his cell for a facility-wide lockdown (see Claim No. 127115, 3-6).(2) The claim alleges that as claimant was being escorted back to his cell following the search, other CERT officers stopped the CERT officer escorting claimant, identified claimant as having made accusations against other correction officers, and repeatedly stated " 'Get him!' " (id. at 8). The claim alleges that the escorting officer said " 'we will take care of it' " (id. at 9). The claim further alleges that when claimant was returned to his cell, he saw another CERT officer "reading claimant's legal papers and searching the cell and property therein" (id. at 11), and that he saw the escorting officer and the searching officer have a conversation, after which the searching officer exited claimant's cell (see id. at 12-14). The claim alleges that claimant complied with the searching officer's orders to enter his cell and place his hands on the wall, that the searching officer asked claimant who Correction Officer (CO) Perry was, and that claimant responded that CO Perry had sexually assaulted him (see id. at 15-18). The claim alleges that the searching officer then punched claimant in the back and the back of the head with a closed fist, causing claimant's forehead to hit the wall (see id. at 20). The claim alleges that claimant turned around to face the searching officer, who ordered him to turn back around, that the searching officer and escorting officer then exited claimant's cell, and that the escorting officer "state[d] loudly and clearly for everyone to hear 'you're a snitch!' " (id. at 23). The claim alleges that the assault and battery violated claimant's rights under the federal constitution and the New York State Correction Law and caused him to sustain physical and emotional injuries, and that he has filed numerous grievances based upon the alleged assault and other instances of retaliation, intimidation, and sexual offenses (see id. at 24-30, 34).

Claimant now moves for an order directing defendant to respond to an undated "Demand for Discovery" that he served on defendant on April 22, 2021 (see Demand for Discovery, attachment [Affidavit of Service of D.G., sworn to Apr. 22, 2021]).(3) In the demand, claimant seeks the following:

"(a) The date and time of the occurrence.

"(b) Its exact location.

"(c) A general statement of the acts constituting the assault and battery.

"(d) Whether actual or constructive notice is claimed.

"(e) If actual notice is claimed, state when and the name of the person to whom same was given.

"(f) Statement of the assault and battery and description of the injuries.

"(g) Photographs of the bruises.

"(h) Length of time with injuries.

"(i) Length of time incapacitated with undue hardships; nature of hardships.

"(j) Total amounts claimed as assault and battery.

"(k) Address of claimant.

"(l) What statutes, ordinances, rules and regulations does claimant claim defendants violated."

(id. at pp. 2-3). Although claimant has submitted an affidavit in support of this motion, it contains no legal argument (see D.G. Affidavit, 1-2). Defendant argues in opposition to the motion that the demand "seeks information which is improper for a Demand upon defendant," but states that "despite the confusing nature and recent receipt" of the demand, defendant responded on May 26, 2021 and provided claimant with documentation and photographs related to the September 16, 2014 incident (Amended Rubinstein Affirmation, 3-4; see id., Exhibit 2 [Rubinstein Correspondence, dated May 26, 2021]). Defendant argues that the motion must be denied because "claimant has been provided with all relevant materials which are routinely maintained and kept by defendant and within the scope of discovery despite an improper request to do so" (id. at 5).

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]), although privileged material may be shielded from disclosure upon an objection by a person entitled to assert the privilege (see CPLR 3101 [b]). The CPLR requires a response to discovery demands within twenty days of their service (see CPLR 3122 [a] [1]), and a motion for a court order compelling discovery is authorized only "[i]f a person fails to respond or comply with any request, notice, interrogatory, demand, question or order" (CPLR 3124).

As an initial matter, the Court agrees with defendant that the majority of the items of discovery sought in the April 22, 2021 demand are improper inasmuch as the information sought is more properly obtained through a demand for a bill of particulars (see CPLR 3041, 3042) rather than a discovery demand under CPLR article 31. Moreover, with the exception of item (g), which seeks photographs of claimant's bruises, all of the information sought in the demand is already within claimant's knowledge (i.e. the date, time, and location of the incident, the injuries and damages claimed, and claimant's address) and would more properly be the subject of a demand for a bill of particulars served by defendant on claimant. With respect to the demand for photographs of claimant's bruises, which, as noted above, is the only item in the discovery demand that seeks information that is in defendant's possession, defendant has provided claimant with six color photographs taken on September 18, 2014, two days after the incident that forms the basis of this claim, as well as other documents related to the alleged assault. Claimant has not submitted a reply to defendant's response arguing that it is deficient or otherwise defective, and that portion of the instant motion seeking an order compelling defendant to provide claimant with photographs of his injuries is moot (see Stallone v State of New York, UID No. 2019-040-058 [Ct Cl, McCarthy, J., July 15, 2019]; Jones v State of New York, UID No. 2019-038-548 [Ct Cl, DeBow, J., June 19, 2019]).

In sum, inasmuch as the April 22, 2021 discovery demand seeks information that is more properly the subject of a bill of particulars and is already in claimant's possession, defendant has nevertheless responded to the discovery demand, and claimant has not argued in reply that defendant's discovery response was defective, defendant will not be compelled to respond further to the April 22, 2021 discovery demand, and claimant's motion to compel will be denied.

Accordingly, it is

ORDERED, that claimant's motion number M-96728 is hereby DENIED.

June 28, 2021

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

1. Claim No. 127115, filed November 27, 2015;

2. Verified Answer, filed December 29, 2015;

3. Notice of Motion, undated;

4. Affidavit of D.G., sworn to April 22, 2021;

5. Demand for Discovery, undated;

6. Affidavit of Service of D.G., sworn to April 22, 2021;

7. Amended Affirmation of Heather R. Rubinstein, AAG, in Opposition to Motion to Compel, dated May 26, 2021, with Exhibits 1-2;

8. Affidavit of Service of Francine Broughton, sworn to May 26, 2021.

1. Because the claim includes allegations that claimant was the victim of a sexual assault as defined in Penal Law article 130, the Court has amended the caption sua sponte in accordance with Civil Rights Law 50-b (1).

2. Although the claim alleges that it accrued at Green Haven CF, it consistently alleges that the individuals who conducted the search of claimant's cell and committed the assault and battery were "Elmira C.E.R.T. prison guards" (Claim No. 127115, 6-8).

3. While the affidavit of service attached to the discovery demand reflects that the discovery demand was served simultaneously with the instant motion (see Demand for Discovery, attachment [Affidavit of Service of D.G., sworn to Apr. 22, 2021]; see also Rubinstein Affirmation, 2-3), making this motion premature (see e.g. Humphrey v State of New York, UID No. 2020-038-568 [Ct Cl, DeBow, J., Nov. 9, 2020]), defendant has indicated in its opposition to the motion that it has responded to the discovery demand, and the motion will not be denied on the ground that it is premature.