New York State Court of Claims

New York State Court of Claims
FUENTES v. STATE OF NEW YORK, # 2021-040-022, Claim No. 130850, Motion No. M-96517

Synopsis

Pro Se Claimant's Motion to compel to answer interrogatories and respond to discovery demands granted in part and denied in part.

Case information

UID: 2021-040-022
Claimant(s): JESUS FUENTES
Claimant short name: FUENTES
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130850
Motion number(s): M-96517
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Jesus Fuentes, Pro Se
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Glenn C. King, Esq., AAG
Third-party defendant's attorney:
Signature date: June 21, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, pro se Claimant's Motion to compel Defendant to answer Claimant's interrogatories and to compel a response to his discovery demands is granted in part and denied in part. The portion of the Motion seeking sanctions pursuant to CPLR § 3126 is denied.

This pro se Claim, which was filed in the office of the Clerk of the Court on January 17, 2018, alleges that certain items of Claimant's personal property were lost when he was transferred from Franklin Correctional Facility to Fishkill Correctional Facility on February 3, 2017.

In his affidavit submitted in support of his Motion, Claimant asserts that he served interrogatories upon Defendant, dated November 18, 2019 (Affidavit of Jesus Fuentes [hereinafter, "Fuentes Affidavit"], ¶ 15; see Ex. A attached to Fuentes Affidavit). Defendant responded to Claimant's interrogatories on December 4, 2019 (see Ex. C attached to the Affirmation of Glenn C. King, Esq., Assistant Attorney General [hereinafter, "King Affirmation"]). The interrogatories consisted of eight questions, all of which contained sub-parts or followup questions. Defendant objected to interrogatories 1 thru 7 inclusive and failed to respond to or object to Question 8.

Defendant objected to Question 1 on the basis that the question relates to Defendant's affirmative defenses raised in its Verified Answer. Defendant asserts that the issue of Defendant's affirmative defenses has been fully addressed as a result of this Court's decisions addressing Claimant's Motion to Strike Defendant's affirmative defenses and for Summary Judgment (see Fuentes v State of New York, UID No. 2018-040-072 [Ct Cl, McCarthy, J., Aug. 8, 2018]) and subsequent Motion for Reargument (Fuentes v State of New York, UID No. 2019-040-055 [Ct Cl, McCarthy, J., July 10, 2019]) (Ex. C, ¶¶ 3-6, attached to King Affirmation).

In its Response to Claimant's Interrogatories, Defendant objected to "the remainder of Claimant's interrogatories which contain demands addressed towards five agents of the State" (see Claimant's interrogatories ¶ 2-7)(1) (Ex. C, ¶ 7, attached to King Affirmation).

Defendant objected to the interrogatories served upon it by Claimant on the ground that they were equivalent to a deposition on written questions, and that the latter procedure may only be used when "the examining party and the deponent so stipulate or when the testimony is to be taken without the state" (CPLR 3108). Defendant did not so stipulate in this case and objected that the interrogatories directed to these five individuals was akin to a deposition on written questions (Ex. C, ¶ 7, attached to King Affirmation). Defendant further asserted that, regardless of whether these five individuals were employees or agents of the State, Claimant cannot dictate the individual who shall respond, as that matter is within Defendant's province (see e.g. JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 292 [3d Dept 1984]) (id., ¶ 9).

Pursuant to CPLR § 3130(1), a party may serve interrogatories on another party. Interrogatories directed to nonparty employees of the State, however, are improper (Martinez v State of New York, 111 AD3d 1445, 1446 [4th Dept 2013], lv dismissed 23 NY3d 956 [2014]; Carp v Marcus, 116 AD2d 854, 856 [3d Dept 1986]; Melette v State of New York, UID No. 2018-040-019 [Ct Cl, McCarthy, J., Feb. 21, 2018]; Rosa v State of New York, UID No. 2014-049-054 [Ct Cl, Weinstein, J., Oct. 14, 2014]; see Vidal v State of NewYork, UID No. 2017-038-580 [Ct Cl, DeBow, J., Nov. 3, 2017]; Towner v State of New York, UID No. 2015-053-504 [Ct Cl, Sampson, J., Aug. 12, 2015]).

Here, Defendant did not respond to Claimant's first interrogatory on the grounds that the issue of Defendant's affirmative defenses has been fully addressed as a result of this Court's decisions addressing Claimant's Motion to Strike Defendant's affirmative defenses and for Summary Judgment. However, the Court stated in its decision that questions of fact existed regarding each of the affirmative defenses and that the defenses must stand pending a factual determination of the issues. Claimant is attempting to ascertain evidence regarding those defenses in his first interrogatory. CPLR 3101(a) provides that there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action. Moreover, the party who objects to an interrogatory requesting facts in support of an affirmative defense bears the burden of establishing that the information sought is privileged (New Line Stone Co. Inc. v BCRE Servs. LLC, 89 AD3d 581 [1st Dept 2011]; see Gottwald v Geragos, 61 Misc3d 1214[A], 6-7 [Sup Ct, NY County 2018], affd sub nom. Gottwald v Sebert, 172 AD3d 445 [1st Dept 2019]). Here, Defendant did not provide any information at all regarding its affirmative defenses and failed to establish that the information sought was privileged. Therefore, the Court directs Defendant to respond to interrogatory 1 within forty (40) days of the date of filing of this Decision and Order.

The Court will now address interrogatories 2 through 8. Claimant asserts that the interrogatories are directed to Defendant. However, he has directed questions to various people. As he has submitted questions that are specifically directed to Correction Officers "Doe" and Martin, Deputy Superintendents Meskunas and Foster, and Superintendent LaClair, and he is seeking information directly within their knowledge, the Court finds that those specific interrogatories (2[a], [b], [i], [k]; 3[a], [b], [g], [k], [m], [n], [p], [q]; 4[a- i]; and 6[a-e]) are improper as they are, in reality, a deposition on written questions and not interrogatories (Martinez v State of New York, supra; Vidal v State of New York, supra). The Court finds that the remainder of the interrogatories are not directed to specific people and can be answered based upon State records. Therefore, the Court directs Defendant to respond to the following interrogatories: 2 (c), (d), (e), (f), (g), (h), (j), and (l); 3 (c), (d), (e), (f), (h), (i), (j), (l), and (o); 5 (a)-(h); 6 (f), (g); 7; and 8 (a), (b) and (c), within forty (40) days of the date of filing of this Decision and Order.

The Court now turns to Claimant's Disclosure Demand, dated January 2, 2020 (see Ex. C attached to Fuentes Affidavit). The Document contained six Demands, all of which had multiple sub-parts. As a result of the Covid-19 public health emergency, Defendant did not serve a response to the Demand until July 16, 2020 (see King Affirmation, ¶ 12; Ex. E attached to King Affirmation).

Claimant objects to numerous responses provided by Defendant (specifically, Demands 1(a), 2(a), (c), (e), 3, 4, 5 and 6) (Fuentes Affidavit, ¶¶ 27-28) and seeks an Order to compel, as well as, sanctions pursuant to CPLR § 3126.

Claimant's Demands and the State's Responses thereto with respect to the disputed responses are as follows:

1. DEMAND: With respect to Claimant's stay at Franklin C.F.:

(a) A copy of "[t]he original (white) of Form #2064" (cf., Directive #4934[II][3][a]), that had been prepared by John Doe, on Friday, January 27, 2017, respecting the searching, inventory and packing up of Claimant's personal property - after Claimant had been admitted into the facility's medical - unit.

RESPONSE: In response to "1a" - defendant has no such document in its possession. As can be noted by the Internal Movement History Display, claimant was not transferred between facilities or to Special Housing on January 27, 2017, as Exhibit A

2. DEMAND: With respect to Claimant's stay at Clinton Correctional Facility - Annex ["Clinton Annex"]:

(a) A copy of any and all "Forms #1755 and Form #1755F", indicating "[a]ll articles received" into the facility's Package Room, during Claimant's entire stay at Clinton - Annex, i.e. beginning on or about Friday, August 9, 2013 through to Wednesday, January 20, 2016.

(c) A copy of all " 'local permits' issued" by any facility staff-member, respecting any and all articles/items brought and/or purchased by Claimant - after Claimant's arrival at Clinton - Annex - including, but not limited, to permit items, or articles purchased from the facility's commissary.

(e) Respecting any and all local permits that had been issued to Claimant - during the period of Friday, August 9, 2013 through to Wednesday, January 20, 2016 - a copy of any and all commissary receipts respecting any local permit item(s) purchased therefrom during such period.

RESPONSE: Defendant objects to "2a" as overly broad and beyond the scope of the claim … Defendant object to "2c" and "2e" - as pursuant to Department of Corrections and Community Supervision Directive #4911 "Packages and Articles Sent or Brought to Facilities", Section IV "Local Permits" Section A 4 states: "By signing the local permit, the inmate shall indicate his or her understanding that the permit is valid only in his or her current facility…" as such, this demand is beyond the scope of the claim…

3. DEMAND: With respect to Claimant's stay at the Coxsackie Correctional Facility:

(a) A copy of any and all "Forms #1755 and Form #1755F", indicating "[a]ll articles received" into the facility's Package Room, during Claimant's entire stay at Coxsackie C.F. - i.e., beginning on or about Friday, June 20, 2012 through to Tuesday, August 6, 2013.

(b) A copy of any and all "departmental Form 1755V" that may have been prepared by any officer, official, and/or any third-party individual(s), "listing any" - and all - "articl[es] received which has a verified value of more than $20.00", and "filed in the Package Room", at Coxsackie C.F.

(c) A copy of all "local permits" issued by any facility staff-member, respecting any and all articles/items brought and/or purchased by Claimant - after Claimant's arrival at Coxsackie C.F. - including, but not limited to permit items, or articles purchased from the facility's commissary.

(d) Respecting any and all local permits that had been issued to claimant - during Claimant's entire stay therein - a copy of any and all commissary receipts respecting any local permit item(s) purchased from the Coxsackie's commissary.

(e) A copy of "[t]he original (white) of Form #2064", that had been prepared by the respective pack-up officer, on or about Tuesday, August 6, 2013, of Claimant's personal property prior to his transfer to Clinton - Annex (via the Downstate Correctional Facility ["Downstate C.F."]), the following the day.

RESPONSE: Defendant objects to demands "3a" - "3e" as overly broad and beyond the scope of the claim. It seeks documents neither relevant to the subject matter involved in this litigation nor reasonably calculated to lead to discovery of admissible evidence.

4. DEMAND: With respect to Claimant's stay at Clinton Annex - during the period beginning on or about Tuesday, May 6, 2008 through to Thursday, June 19, 2012:

(a) A copy of any and all "Forms #1755 and Form #1755F", indicating "[a]ll articles received" into the facility's Package Room, during Claimant's entire stay at Clinton - Annex - as indicated above.

(b) A copy of any and all "departmental Form #1755V" that may have been prepared by any facility staff-member, and/or any third-party individual(s), "listing any" - and all - "artic[les] received which has a verified value of more than $20.00", and "filed in the Package Room", at Clinton - Annex.

(c) A copy of all "local permits" issued by any facility staff-member, respecting any and all articles/items brought and/or purchased by Claimant - after Claimant's arrival at Clinton-Annex - including, but not limited to permit items, or articles purchased from the facility's commissary.

(d) Respecting any and all local permits that had been issued to Claimant - during Claimant's respective stay therein -, a copy of any and all commissary receipts respecting any local permit item(s) purchased form the facility's commissary; or in the alternative, a copy of every commissary receipt issued to Claimant.

(e) A copy of "[t]he original (white) of Form #2064" that had been prepared by the respective pack-up officer, on or about Thursday, June 19, 2012, prior to Claimant's transfer to Coxsackie C.F., the following day, via Downstate C.F.

RESPONSE: Defendant objects to demands "4a" - "4e" as overly broad and beyond the scope of the claim. It seeks documents neither relevant to the subject matter involved in this litigation nor reasonably calculated to lead to discovery or admissible evidence.

5. DEMAND: With respect to Claimant's stay at the Great Meadow Correctional Facility ["Comstock"] - during the period beginning on or about Monday, August 20, 1998 through to Thursday, February 2007 [sic]:

(a) A copy of any and all "Forms #1755 and Form #1755F", indicating "[a]ll articles received" into the facility's Package Room, during Claimant's entire stay at Comstock, as indicated above.

(b) A copy of any and all "departmental Form #1755V" that may have been prepared by any facility staff-member and/or any third-party individual(s), "listing any" - and all - "artic[les] received which has a verified value of more than $20.00", and "filed in the Package Room", at Comstock.

(c) A copy of all " 'local permits' issued" by [any] facility staff-member, respecting any and all articles/items brought and/or purchased by Claimant - after Claimant's arrival at Comstock - including, but not limited to permit items, or articles purchased from the facility's commissary, with the exception of any "KTV" (i.e., television) purchased therefrom.

(d) Respecting any and all local permits that had been issued to Claimant - during Claimant's respective stay therein -, a copy of any and all commissary receipts respecting any local permit item(s) purchased from the facility's commissary.

(e) A copy of "[t]he original (white) of Form #2064" - or in this instance, because there was an excess of property bags (i.e., approximately eight (8)) - that had been prepared by the respective pack-up officer, on or about Wednesday, January 31, 2007.

RESPONSE: Defendant objects to demands "5a" - "5e" as overly broad and beyond the scope of the claim. It seeks documents neither relevant to the subject matter involved in this litigation nor reasonably calculated to lead to discovery of admissible evidence.

6. DEMAND: With respect to Claimant's brief stay at the Upstate Correctional Facility - i.e., in the SHU therein -, during the approximate period commencing on Friday, February 2, 2007, and ending on April 13, 2007:

(a) A copy of "]t]he original (white) of Form #2064" that had been prepared by the respective correction officer(s), upon their receipt and re-inventory of Claimant's two separate personal property shipments - i.e., the receipt of Claimant's four (4) bags of property plus a typewriter, that had accompanied Claimant's person; and the approximately four additional bags of personal property that had subsequently arrived at the facility via the U.S. Postal Service.

(b) A copy of each - if more than one - of "[t]he original (white) of Form #2064" that had been prepared by the respective pack-up officer(s), the day prior to Claimant's transfer to Clinton C.F. - Main.

RESPONSE: Defendant objects to demands "6a" and "6b" as overly broad and beyond the scope of the claim. It seeks documents neither relevant to the subject matter involved in this litigation nor reasonably calculated to lead to discovery of admissible evidence.

(Ex. C attached to Fuentes Affidavit; Ex. E attached to King Affirmation)

With regard to Demand 1(a), Defendant asserts that the requested document is not in its possession as Claimant was not transferred between facilities or to the Special Housing Unit.

It is axiomatic that "a party cannot be compelled to produce documents that do not exist" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]). In such cases, however, the Court concludes that Claimant "is entitled to a detailed statement, made under oath, by an employee or officer with direct knowledge of the facts as to the past and present status of the sought documents" (Wilensky v JRB Mktg. & Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]; Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000]; see Orner v Mount Sinai Hosp., 305 AD2d 307, 310 [1st Dept 2003]). As it appears that a Form 2064 Form does not exist for the January 27, 2017 move of Claimant to the medical unit, Defendant is to provide the affidavit to Claimant within forty (40) days of the date of filing of this Decision and Order. However, if it does exist, Defendant is to provide the document to Claimant within the same time frame.

Defendant objects to Demands 2(a), (c), (e), 3(a-e), 4(a-e), 5(a-e), and 6(a and b) as overly broad and/or beyond the scope of the Claim. In opposition, Claimant asserts that he is entitled to the requested information as Defendant raised as its Third affirmative defense that it is liable only with respect to property that Claimant owned and rightly possessed pursuant to Department of Corrections and Community Supervision (hereinafter, "DOCCS") directives (see Fuentes Affidavit, ¶ 28).

As stated above, Claimant's Claim alleges that certain items of his personal property were lost when he was transferred from Franklin Correctional Facility to Fishkill Correctional Facility on February 3, 2017. Claimant has attached, to his filed Claim, a copy of the DOCCS Inmate Claim Form wherein he lists the items he asserts are missing. The age of the items listed ranges from 1 day old (for a commissary purchase) to 10 years old (for a dictionary and a 2 volume set of books). The form is dated March 29, 2017. Thus, the oldest item Claimant is asserting he lost was purchased in 2007. Therefore, any requests for documents relating to property received prior to January 1, 2007 are overly broad and beyond the scope of the Claim.

With respect to requests for documents relating to property received on or after January 1, 2007, such documents should be set forth individually, or by category, and described with reasonable particularity (see CPLR 3120[3]). Moreover, use of the descriptions, "any," "all," or "any and all" renders the request "for discovery and inspection improper" (Jonassen v A.M.F., Inc., 104 AD2d 484, 485-486 [2d Dept 1984]), "vague and overbroad" (Carp v Marcus, supra at 855; see Slate v State of New York, 267 AD2d 839, 841[3d Dept 1999]). Thus, Claimant's request for "all" and "any and all" documents in Demands 2(a), (c), (e), 3(a-d), 4(a-d), and 5(a-d) are overly broad, as Defendant asserts. Claimant's Claim relates to specific items that were allegedly lost. Claimant's requests for Discovery should be limited to those specific items. Claimant's Motion to compel Defendant to respond to those Demands is denied. The Court finds, however, that Discovery Demands 3(e), 4(e), 5(e), and 6(a and b) are specific and that Defendant is to provide a Response to those Demands within forty (40) days of the date of filing of this Decision and Order.

Regarding that portion of Claimant's Motion for sanctions, pursuant to CPLR 3126, against Defense counsel, the Court denies that portion of the Motion, as Claimant has failed to establish that Defendant failed to obey a disclosure order or willfully failed to disclose information. Defendant believed it did not have to answer all interrogatories submitted by Claimant. The Court agreed with some of Defendant's objections and finds that others lack merit. The Court further finds that all of Defendant's responses to Claimant's Discovery Demands were proper.

For the reasons set forth above, Claimant's Motion to Compel is granted in part and denied in part.

June 21, 2021

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's Motion:

Papers Numbered

Notice of Motion, Affidavit in Support,

Exhibits Attached, and Memorandum of Law 1

Affirmation in Opposition and

Exhibits Attached 2

Filed Papers: Claim, Answer


1. Claimant's interrogatories contain eight questions, not seven as stated in Defendant's response. However, since Defendant clearly stated it objected to the "remainder of Claimant's interrogatories," the Court will consider the objection to include Question 8.