Opinion
# 2012-049-066 Claim No. 121319 Motion No. M-81978 Cross-Motion No. CM-82090
12-20-2012
SHAWN GREEN v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2012-049-066 Claimant(s): SHAWN GREEN Claimant short name: GREEN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121319 Motion number(s): M-81978 Cross-motion number(s): CM-82090 Judge: David A. Weinstein Claimant's attorney: Shawn Green, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: December 20, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate proceeding pro se, commenced this action by claim filed May 17, 2012 and served May 29, 2012. That claim alleges six distinct causes of action:
•Various items in Green's personal belongings were destroyed during his placement in a Special Housing Unit at Southport Correctional Facility ("Southport") (Claim ¶ 3);does not maintain a complete system of medical records in every facility, which resulted in the failure to locate claimant's records set forth above (Claim ¶ 7).
•Claimant was transferred from Southport to Great Meadow Correctional Facility on January 30, 2012 for a court appearance without critical insulin treatment information or prescription medication (Enalapril), subjecting him to "foreseeable harm, future adverse medical effects and /or plac[ing] him at risk of crucial health complications as a result of hyperglycemia conditions experience during such trip," which event "also transpired with [F]ebruary 14, 2012 transfer" (Claim ¶ 4);
•Claimant "was made to incur unnecessary expenses [$80.34] in shipping excessive personal property upon departure from Southport" on February 14, 2012, due to alleged misrepresentations by prison officials regarding his options for sending such materials (Claim ¶ 5);
•On January 13, 2012 and February 24, 2012 claimant requested certain medical records, but they could not be located (Claim ¶ 6); and
•The Department of Corrections and Community Supervision ("DOCCS")
The claim makes references to DOCS, the abbreviation for the Department of Correctional Services, which managed the State prison system until April 2011. At that time, DOCS was merged with the Department of Parole to create DOCCS, by operation of chapter 62 of the Laws of 2011. Since DOCS no longer existed at the time of the events at issue in the claim, it is presumed for purposes of this opinion that claimant's intended reference is to DOCCS.
By motion filed July 27, 2012, claimant seeks to compel the defendant to comply with various discovery demands, and to impose sanctions on defendant under CPLR 3126 for its alleged failure to fully respond to those demands to date. Defendant has submitted an affirmation by Assistant Attorney General Roberto Barbosa in opposition thereto, and has cross-moved for summary judgment on the causes of action set forth in paragraphs 4, 5 and 6 of the claim (which causes of action are identified below by the paragraph in the claim in which they are alleged), on the ground that they are time-barred. Claimant has submitted his own affidavit in opposition to the cross-motion, and in further support of his motion to compel.
Since the ruling on the summary judgment motion will determine the scope of the pending claim, and therefore the materiality of the discovery at issue in the motion to compel, it is addressed first.
I. Cross-Motion for Partial Summary Judgment
On a motion for summary judgment, the following standards apply:
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562)."Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986).
Defendant's cross-motion is supported by the affirmation of an assistant attorney general without personal knowledge of the facts at issue. Such an affirmation is of no probative value in itself (see Zuckerman, 49 NY2d at 563), but may be used as a vehicle for marshaling documentary evidence in support of a summary judgment motion (id.; see also Guzman v Strab Constr. Corp., 228 AD2d 645, 646 [2d Dept 1996] ["evidentiary facts" derived from documents submitted in opposition to summary judgment motion sufficient to present triable issue of fact]).
In the present case, defendant relies entirely on the admissions set forth in claimant's pleadings to show that the causes of action were filed or served outside the statutory deadlines. Such admissions are a cognizable basis for granting summary judgment (see Robin BB. v Kotzen, 62 AD3d 1187 [3d Dept 2009] [copy of pleadings submitted with attorney affirmation "provided competent evidence to support Supreme Court's decision to grant plaintiffs' motion for summary judgment"]; Winkler v Lombardi, 205 AD2d 757, 757 [2d Dept 1994] [movant's burden on summary judgment properly supported, inter alia, by adversary's bill of particulars]; see also CPLR 3212 [b] [motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof"]). Defendant may therefore prevail on this motion as to each cause of action that the claim itself demonstrates is untimely.
Green's affidavit of service also indicates that the claim was given to prison authorities for mailing on May 9, 2012.
The failure to timely comply with the service and filing requirements of the Court of Claims Act gives rise to a jurisdictional defect compelling dismissal (see Finnerty v New York State Thruway Auth.,75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]), provided the defect is raised with particularity either by motion to dismiss prior to service of the responsive pleading, or as is the case here, in the responsive pleading itself (Court of Claims Act § 11 [c]). Defendant has preserved its objection to the timeliness of filing and service of the claim in its seventh, eighth and ninth affirmative defenses in its answer.
The cause of action in paragraph 4 may be read to allege either negligence or medical malpractice, and thus must be filed and served within 90 days of accrual unless a notice of intention was served (see Court of Claims Act § 10 [3]; Ogle v State of New York, 142 AD2d 37, 39 [3d Dept 1988]). A malpractice claim accrues "on the date of the alleged wrongful act or omission" - in this case the alleged failure to give claimant his medicine (see Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]), while a negligence case accrues on the date the alleged negligence occurred (see Jackson v L.P. Transp., 72 NY2d 975, 976 [1988]). At latest, this claim accrued on February 14, 2012, the last day referenced in the claim on which claimant asserts that defendant acted improperly (although the precise misconduct that took place on that date is unclear). Since more than 90 days elapsed between the accrual date and service of the claim, and claimant does not allege a notice of intention was served, this cause of action is time-barred unless claimant can demonstrate some basis for avoiding that bar.
Claimant makes two arguments against dismissal. First, he contends that this cause of action is timely under the "continuous treatment" doctrine (Reply ¶ 11). That doctrine provides that the statutory time period does not begin to run when the "course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (Nykorchuck, 78 NY2d at 258 [internal quotes and citations omitted]). This principle does not apply, however, where the allegation concerns the "deprivation of medical treatment" (Watson v State of New York, 35 AD3d 985, 986 [3d Dept 2006]; see also Salquerro v State of New York, 212 AD2d 827, 828 [3d Dept 1995] [where gravamen of claim is that State refused or failed to provide physical therapy, continuous treatment doctrine does not apply]). Here, the gravamen of this cause of action is that Green did not receive the medication and treatment to which he was entitled. Such a purported failure to provide care cannot constitute continuous treatment.
Claimant also seeks to avoid summary judgment on the ground that the failure to timely file and serve his claim is the fault of prison officials. Specifically, claimant states that the claim was "notarized and submitted to 3-11 tour company officer at 10:00 p.m. on May 9th, 2012 for mailing out"(Reply Aff. ¶ 12). Thus, Green asserts, he took steps to ensure that his claim would comply with the time parameters of the Court of Claims Act, and "it would be a manifest injustice in this particular situation to penalize claimant for the sins of negligence or intent committed by State officers or employees" (id. ¶ 13).
Green's affidavit of service also indicates that the claim was given to prison authorities for mailing on May 9.
Although the Supreme Court of United States has construed certain federal rules so that pro se prisoner claims are deemed "filed at the moment of delivery to prison authorities for forwarding" to the court (Houston v Lack, 487 US 266, 268 [1988]), New York courts have declined to adopt a blanket "prisoner mailbox exception" (see Matter of Grant v Senkowski, 95 NY2d 605, 609 [2001] [rejecting mailbox rule with respect to CPLR procedures for commencing an action or special proceeding]), and have ruled this exception specifically inapplicable to the Court of Claims Act (see Philippe v State of New York, 248 AD2d 827, 828 [3d Dept 1998], quoting Espinal v State of New York, 159 Misc 2d 1051, 1054 [Ct Cl 1993] ["claimant's reliance on Houston v Lack . . . is misplaced inasmuch as 'the [New York] statutes governing filing and service of the papers initiating Court of Claims actions do not approximate, much less mirror, the Federal rules considered in Houston'"]). Further, the applicable regulation states that a claim sent by mail to this Court is filed "upon [ ] receipt," not upon mailing (22 NYCRR 206.5 [a]).
New York courts have, instead, crafted a narrow escape hatch for prisoner claims that fail to meet the legal requirements for timely filing and service, estopping the State from obtaining dismissal when the prisoner's non-compliance was the result of "misfeasance or malfeasance" on the part of correctional personnel or other state officials (see Rivera v State of New York, 5 AD3d 881 [3d Dept 2004] ["[u]nder certain circumstances," omissions or malfeasance by prison officials may "be a proper excuse for failure to timely file . . . warranting estoppel"]). Such an estoppel has been found, in particular, where prison officials failed to use a proper service method in disregard of instructions by an inmate claimant (e.g. Pierotti v State of New York, UID No. 2007-028-538 [Ct Cl, Sise, P.J., Mar. 30, 2007] [estoppel appropriate where claimant established that he specifically requested service by certified mail, return receipt requested, but prison sent claim by regular mail]; Davidson v State of New York, UID No, 2006-031-019 [Ct Cl, Minarik, J., Apr. 5, 2006], affd 43 AD3d 1311 [4th Dept 2007] [State estopped from seeking dismissal for failure to timely serve and file claim, where prison mail staff refused to have claim notarized, or to be sent to Attorney General by certified mail, return receipt requested]). But in order to invoke this doctrine, claimant has the burden to show the State has acted improperly in mailing his documents (see Wattley v State of New York, 146 Misc 2d 968, 970 [Ct Cl, 1990] ["the mere allegation of a State failure to act is not sufficient to overcome the presumption of regularity"]). In this case Green has not made any allegations, much less presented evidence in opposition to summary judgment, to support such an assertion. Nor is there any evidence from which this may be inferred.
By his own admission, Green gave prison staff his claim so that it could have been mailed, at earliest, on May 10, 2012. May 13 was a Sunday, and thus taking Green's account as true (as I must on this motion), there were only three full mailing days in which the claim had to reach the Court for filing and be served on the State. Moreover, the prison would first need to forward such mail to the Post Office, which DOCCS regulations require only once a day (7 NYCRR 720.5). On this record, there is no basis for presuming that the failure of his claim to reach the Court and defendant within the required time frame by itself demonstrates that the actions or inaction of prison officials caused such delay(see Adams v State of New York, UID No. 2006-044-509 [Ct Cl, Schaewe, J., Oct. 24, 2006] ["it was [claimant's] responsibility to leave sufficient time to process his papers"]; Boehm v State of New York, UID No. 2008-030-023 [Ct Cl, Scuccimarra, J., Sept. 29, 2008] [no estoppel where "claimant appears to have waited until the eleventh hour to serve and file his claim, with an awareness that there were processing issues or limitations within the facility"]). This cause of action is therefore time-barred.
If Green's submissions are accurate, then Green's claim was not filed until a week after it was mailed out, and it was not served until nearly three weeks later. I need not decide whether such a delay would itself suffice to raise an inference of non-feasance on the part of correctional officials, however. Unless the record shows that the actions or inaction of such officials caused the claim to be filed later than May 14, there is no basis for estoppel. For reasons set forth above, there is no evidence in the record that would support such a finding.
Claimant states generally in his reply papers that the Court should allow him more discovery before granting summary judgment (Reply ¶ 15). He does not provide any specificity, however, as to any discovery materials he is seeking that might alter the ruling set forth above. His general statement in this regard is insufficient to stave off summary judgment (see Stubbs v Ellis Hosp., 68 AD3d 1617, 1618 [3d Dept 2009] [party opposing summary judgment on grounds of insufficient discovery "must demonstrate that further discovery might reveal material facts but mere speculation will be insufficient"] [citations and internal quotation marks omitted]; see also CPLR 3212 [f] [summary judgment may be denied when "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated"]).
The cause of action in paragraph 5 faces the same obstacle. In that case, as well, the latest possible accrual date was February 14, 2012, when claimant says he was "made to incur" the "unnecessary expenses" at issue (see IFD Const. Corp. v Corddry Carpenter Dietz & Zack, 253 AD2d 89, 93 [1st Dept 1999] [in negligent misrepresentation case, plaintiff was injured at time it acted in response to misrepresentations in formulating bid, and "need not be aware of the wrong or injury for the cause of action to accrue"]). For reasons stated above, his failure to file or serve his claim by May 14, 2012 rendered this cause of action untimely.
The facts regarding the time on which the cause of action in paragraph 6 accrued, however, are murkier. Claimant alleges therein that he requested certain medical records on January 13 and February 24, 2012, and they were not provided because they could not be located, thereby depriving him of the right of access to those records and to their confidential treatment. Nothing in the claim indicates when the records were lost, when the fact that they were missing was conveyed to claimant, or when any harm was caused to claimant by this violation.Absent this information, I cannot determine when the cause of action accrued(see Augat v State of New York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 [1998] [cause of action generally accrues when damages are "reasonably ascertainable"]).
Appended to Green's claim is a handwritten note apparently from a DOCCS employee stating that his 2007 inactive file was missing, but it is undated.
I need not address whether such a cause of action, if proven, could sustain a claim for money damages, as defendant only seeks summary judgment on the ground that it is untimely.
Defendant has the burden of presenting a prima facie case on its summary judgment motion. Since it relies entirely on claimant's filing to prove the accrual date, and as those filings are at best ambiguous, defendant has not met that burden. I therefore deny defendant's motion as to the paragraph 6 cause of action. In doing so, I note that the estoppel issues presented by this cause of action may be different from those discussed above. It is unclear when the claim accrued, and - if the claim was timely filed but not served - the length of delay between the delivery to prison authorities and untimely service.These issues can be further addressed at trial, should the State seek to renew its untimeliness argument at that time.
Further, the only evidence before me regarding the date of service is in the assistant attorney general's affidavit, which does not indicate whether he had personal knowledge thereof.
II. Motion to Compel Discovery and for Sanctions
On June 5, 2012, claimant served defendant with notices to admit, interrogatories, and document requests (see Def. Aff. in Opp. ¶ 6; Ex. A). Those discovery demands are now the subject of claimant's motion to compel, which is addressed below as to each request at issue.
A. Notices to Admit
Claimant's discovery request included thirteen notices to admit made pursuant to CPLR 3123. Defendant submitted a sworn response by its counsel dated June 25, 2012. The response stated generally that the notice consisted of matters in dispute which are appropriately resolved at trial, and therefore improper subjects for a notice to admit (see Def. Statement in Reply ¶ 3). But defendant further stated that "[t]o the extent that claimant seeks a response to his request for admissions, Defendant DENIES each and every statement, contained therein" (id. ¶ 4).
The basis for Green's objection to this response is not entirely clear from his motion papers. He appears to challenge the general nature of the denial, arguing that section 3123 requires that defendant "provide sworn statements denying specifically each admission requested" (Aff. in Supp. ¶ 4). He also asserts that the notices to admit were appropriate, as "they consist of matters either set forth within factual documented records or pertain [sic] to departmental regulations duties/functions, which are surely undisputable [sic] factors of the lawsuit itself" (Reply Aff. ¶ 4).
Defendant opposes the motion to compel on the ground that it is not an appropriate vehicle for addressing notices to admit. Indeed, CPLR 3124, which governs motions to compel discovery, states (emphasis added): "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section CPLR 3123, the party seeking disclosure may move to compel compliance or a response." That is because CPLR 3123 provides its own remedies (see Spawton v James E. Strates Shows, 75 Misc 2d 813, 815 [Sup Ct, Erie County 1973] [CPLR 3123 is "self-regulating," and CPLR 3124 "does not apply" to this provision]). In any event, it is unclear what claimant wishes to "compel," since defendant did, in fact, respond to the notices presented to it.
I assume nonetheless that the Court has the power to rule on disputes regarding the form of a response to a notice to admit (see Jackson v Dow Chem. Co., 214 AD2d 827, 828 [3d Dept 1995] [trial court has "broad discretion to supervise the discovery process"]), and so proceed to address claimant's specific contentions. Section 3123 states that the recipient of the notice must within twenty days "serve[] upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters." There is nothing in this provision that bars the responding party, in the event it believes that all the notices warrant denial, from doing so in a single statement rather than separately for each notice. Indeed, when the drafters of the disclosure rules sought to prohibit a combined response, they did so explicitly (see CPLR 3133 [b] ["Each [interrogatory] shall be answered separately and fully, and each answer shall be preceded by the question to which it responds"]). No such prohibition is contained in section 3123. And to compel defendant here to write each denial separately when it has already done so collectively would be a pointless exercise.
There are numerous other grounds as to why a further response should not be compelled. In particular, many of the notices to admit concern "material issues or ultimate issues or facts," rather than matters "as to which a party reasonably believes there can be no substantial dispute at the trial" and which can "eliminate from dispute those matters about which there can be no controversy"(Howlan v Rosol, 139 AD2d 799, 801 [3d Dept 1988]; see e.g. Notice to Admit No. 11 ["medical authorities are responsible for safely and securely storing a prisoner['s] medical records"]). Moreover, a majority of the notices concern causes of action which were dismissed as stated above on defendant's summary judgment motion, and they are no longer relevant to this action (see Notices to Admit Nos. 3, 4, 6, 7, 8, 10, and 12).
Since defendant has responded to the notices at issue, and that response does not run afoul of CPLR 3123, claimant's challenge is without basis.
B. Interrogatories
Claimant's omnibus discovery demand included three interrogatories. They sought: (1) the names of all medical personnel that "prepared claimant['s] January 30, 2012 Health Transfer form and February 14, 2012 Ambulatory Health record"; (2) the identity of the Southport and Auburn Nurse Administrator; and (3) the identity of the Southport and Auburn medical record clerk(s). Defendant objected and did not respond to each on the ground that they are equivalent to a deposition on written questions, and therefore "clearly improper" (Aff. in Opp. ¶¶ 9-10).
There is no apparent basis in law for the State's objection. The permissible scope for interrogatories is set forth in CPLR 3130. That provision places specific limitations on the combined use of interrogatories and depositions in negligence actions for damages for personal injury, injury to property or wrongful death, stating: "a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party pursuant to rule 3107 without leave of court." But there is no requirement in the rule that a party must conduct a deposition on written questions rather than interrogatories to seek information from a party to the litigation.
Defendant relies for its argument on the decision and order in Green v State of New York (Claim No. 115393, Motion No. M-79592 [Ct Cl, Schaewe, J., Sep. 13, 2011]), and Lamage v State of New York (Claim No. 115546, Motion No. M-76374 [Ct Cl, Schaewe, J., June 30, 2009]). But those decisions found a deposition on written questions to be the appropriate discovery device because the interrogatories at issue were directed at individual employees, not the State. Indeed, the Court specifically noted in Green that "contrary to defendant's contention, claimant may serve properly drawn interrogatories on the State, as it is the defendant in this manner" (id.). Claimant has done nothing more here.
I nonetheless deny claimant's motion to compel a response to his first interrogatory (see Bligen v Markland Estates, 6 AD3d 371 [2d Dept 2004] [affirming court's sua sponte grant of protective order against certain discovery notices, as within court's broad discretion to supervise discovery]). Claimant sought "the identity of medical personnel who prepared claimant['s] January 30, 2012 Health Transfer form and February 10, 2012 draft out Ambulatory Health Record ("AHR") entry at Southport." This is, on its face, only relevant to the cause of action set forth in paragraph 4, which is dismissed as untimely for reasons set forth above.
Claimant's motion to compel is granted, however, as to the remaining two interrogatories, as there is nothing facially improper about these inquiries. The permissible subject matter for interrogatories is very broad, as they need only relate to "all matter material and necessary in the prosecution or defense of an action" (CPLR 3130; see also CPLR 3131 [interrogatory "may relate to any matters embraced in the disclosure requirement of section 3101"). Claimant's request that the State identify particular individuals relevant to his claim falls within this standard.
It is unclear whether claimant contends the information sought in these interrogatories is relevant to his paragraph 4 cause of action which has now been dismissed, or his causes of action regarding loss of his medical records, which remain live. Given that these requests are not burdensome, and defendant has not premised its challenge on relevance grounds, this ambiguity does not compel denial of claimant's motion.
Claimant's motion to compel is therefore granted as to interrogatories number 2 and 3.
C. Document Requests
Claimant also seeks to compel a further response to his document requests. Defendant's responses fall into several categories, which are addressed in turn below.
First, as to requests 1, 2, and 3, defendant initially stated that it was in the process of locating relevant documents, and would provide any so identified at $0.25 per page for the costs of production. In its response to this motion, defendant now identifies specific responsive documents, which it states that it will provide when claimant pays these costs. Defendant also identified nine pages responsive to request 9 in its original response.
In its opposition to claimant's current motion, defendant states that claimant may seek documents responsive to request 9 "from his facility or defendant would provide them to him upon proper payment" (Aff. in Opp. ¶ 20). I presume this is stated as a potential alternative means for claimant to obtain the documents at issue, and that defendant's original response offering to provide the responsive materials in exchange for payment of costs remains in effect.
As to these requests, claimant states generally in his reply that "document demands can[not] be satisfied by merely arranging for [a party] to inspect designated documents"(Reply ¶ 6). To the extent this can be read as challenging defendant's requirement that Green pay the reasonable costs of duplication and production before he receives the documents, it is without merit. Opinions of this Court have repeatedly held this procedure to be proper (see e.g. Amaker v State of New York, UID No. 2012-049-035 [Ct Cl, Weinstein, J., July 25, 2012] [denying motion to compel when "defendant has offered to make them available once its costs for doing so have been reimbursed"]; Brabham v State of New York, UID No. 2006-041-004 [Ct Cl, Milano, J., Sept. 22, 2006] [denying motion to compel production of documents as to which claimant had not met State's reimbursement demand, except as to certain records whose production is governed by the Public Health Law]). Finally, while defendant did not fully disclose the available documents in its initial response, it has rendered the motion to compel moot by identifying them in its response thereto (see White v State of New York, UID No. 2011-038-516 [Ct Cl, DeBow, J., Mar. 22, 2011] ["by providing the remaining documents sought by claimant [in its response to motion to compel], . . . defendant has adequately complied with claimant's discovery request for documents"]).
For this statement, claimant cites CPLR 3120 (1) (I), which permits a party to serve a document request, and does not support the proposition for which it is cited.
Defendant objected to requests 4 through 7 on the ground that the documents sought were "neither relevant to the subject matter involved in this litigation nor reasonably calculated to lead to discovery of admissible evidence." Request 4 concerns claimant's March 2012 monthly statement; Request 5 seeks claimant's visitation records, so as to show to the numerous opportunities he allegedly would have had to dispose of his property without incurring shipping fees; Request 6 seeks his "chronological history display," which Green states will establish the date of his transfer from Great Meadow to Southport in "January/February 2012"; and Request 7 seeks the "Auburn Draft Storage protocol, the Southport package room protocol and [the] SHU temporary storage of personal belongings protocol," which Green now avers will show when prisoners are allowed to send out packages and other items (Reply ¶ 7).
As claimant's reply affidavit makes clear, Requests 4, 5 and 7 each concern the Paragraph 5 cause of action, while Request 6 relates to the Paragraph 4 cause of action. Since these causes of action have been dismissed pursuant to my ruling above, these requests are no longer relevant to the pending legal claims. Claimant's motion to compel a response to them is therefore denied.
Request 8 seeks DOCS directives 2010, 4913, 4918, 4919 and 4934. Defendant's response stated that Directives 4913 and 4934 could be obtained at claimant's facility, or from defendant at $0.25 per page for duplication of the nine pages at issue. Defendant objected to provision of Directives 4918 and 4919 on the ground that they "are intended to be disclosed to staff only and [their] distribution to inmates creates a safety risk for DOCCS."
Defendant has submitted these directives for in camera review, while claimant has withdrawn his request for Directive 4919. Directive 4918 concerns the provision of health care to inmates during transfer. As such, it has no relevance to any claim except that set forth in paragraph 4, now dismissed. In any case, upon my review of this Directive, and giving due deference to the determinations of prison authorities on matters of security, I find that it contains sensitive information concerning such matters as the transport of inmates and pharmaceutical products, which should not be disclosed in the context of litigation such as this (see Guzman v State of New York, UID No. 2000-016-006 [Ct Cl, Marin, J., Apr. 4, 2000] [denying motion to compel production of "DOCS policy documents concerning the transportation of inmates," such as directives and procedures, because "[t]hese documents relate to the fundamental security mission of correctional facilities"]).
Request 10 seeks certain health transfer forms and medical accountability records. Defendant has interposed no objection to these requests, but states in its response to this motion that claimant may obtain copies of the documents sought from the medical department at his facility. That is not a valid objection. To the extent these documents are present at the facility, they are within defendant's possession and control. Since defendant has raised no other basis for objection, these documents must be offered for production by defendant as well.
Finally, defendant objects to request 11, which seeks the DOCCS depreciation and valuation schedule for lost property. Defendant objects on the ground that this document is not relevant. That is not a valid objection to this request. Claimant seeks recovery for lost property in his paragraph 3 cause of action. To prevail on that claim, he must establish the fair market value of the items lost, which may be shown by the purchase price less depreciation (see Green v State of New York, UID No. 2012-048-514 [Ct Cl, Bruening, J., Sept. 26, 2012]; citing Phillips v Catania, 155 AD2d 866, 877-867 [4th Dept 1989]; Jean-Laurent v State of New York, UID No. 2011-009-115 [Ct Cl, Midey, J., Nov. 9, 2011]). Moreover, claimant avers that the items at issue were purchased at a prison commissary, making DOCCS internal view of their value of particular relevance.
Courts have considered the DOCCS depreciation schedule in assessing the value of lost inmate property; indeed, the State has introduced that schedule in defending against such claims (see Morillo v State of New York, UID No. 2008-013-511 [Ct Cl, Patti, J., Oct. 29, 2008]; see also Jones v State of New York, UID No. 2010-037-511 [Ct Cl, Moriarty, J., Oct. 27, 2010] [citing depreciation schedule in rejecting claim that item had value]; Ahlers v State of New York, UID No. 2002-030-018 [Ct Cl, Scuccimarra, J., Mar. 12, 2002] [claimant cross-examined on DOCCS depreciation schedule]). True, in Morillo the Court found the schedule "only a guide" and of "limited benefit." Nonetheless, under the broad definition of relevance applied to discovery requests, this request seeks a document material and necessary to the matter before the Court and which is identified with specificity, and is not overbroad or burdensome (see Van Buren v Columbia Memorial Hosp., 149 AD2d 835, 836 [3d Dept 1989]). The request to compel its production is therefore granted.
III. Sanctions
Claimant moves for sanctions under CPLR 3126, asserting that defendant has "willfully fail[ed]" to produce the documents and information he seeks. CPLR 3126 provides, in pertinent part: "If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just." The Court has broad discretion in applying this provision (see Ortega v City of New York, 9 NY3d 69, 76 [2007]).
Having reviewed in depth the defendant's discovery responses, I find that there is no evidence of any willful misconduct on its part. Nor has claimant shown he has been prejudiced by any of the actions challenged in his motion (see O'Connor v Syracuse Univ., 66 AD3d 1187, 1191 [3d Dept 2009], lv dismissed 14 NY3d 766 [2010] [denying sanctions under CPLR 3126 where movant failed to show prejudice]). For these reasons, claimant's application for sanctions is denied.
IV. Conclusion
In light of the foregoing, claimant's motion to compel is granted as to interrogatories 2 and 3, and document requests 10 and 11, and is denied in all other respects. Defendant is directed to serve revised responses compliant with this opinion within fifteen days of the filing thereof.
Claimant's motion for sanctions is denied.
Defendant's cross-motion for partial summary judgment is granted as to the causes of action set forth in paragraphs 4 and 5 of the claim, and denied as to paragraph 6.
It is SO ORDERED.
December 20, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered
1. Claimant's Motion to Compel and Impose Sanctions, and Affidavit in Support of Motion.
2. Defendant's Notice of Cross-motion, Affirmation in Opposition to Claimant's Motion and in Support of Defendant's Cross-motion, and annexed exhibits.
3. Claimant's "Reply to Claimant's Motion and Affirmation in Opposition to Defendant's Motion for Summary Judgment."