Opinion
# 2014-040-043 Claim No. 122237 Motion No. M-85325
07-30-2014
WHAYNE F. LOCKE, 03-A-6570 v. THE STATE OF NEW YORK
Whayne F. Locke, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG
Synopsis
Motion to compel discovery granted in part.
Case information
| UID: | 2014-040-043 |
| Claimant(s): | WHAYNE F. LOCKE, 03-A-6570 |
| Claimant short name: | LOCKE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122237 |
| Motion number(s): | M-85325 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Whayne F. Locke, Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | July 30, 2014 |
| 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 a response to his notice to produce is granted in part and otherwise denied.
This pro se Claim, which was filed in the office of the Clerk of the Court on January 11, 2013, asserts that Claimant was incarcerated at Franklin Correctional Facility located in Malone, New York (hereinafter "Franklin") on September 24, 2012. Claimant asserts that, at approximately 6:15 that evening, he was ordered to leave his job in the mess hall and was escorted back to his housing unit where he was assaulted by several correction officers.
Claimant asserts, in his affidavit submitted in support of the motion, that he served a Notice for Discovery and Inspection upon Defendant on May 22, 2014 (Locke Affidavit, ¶ 2). He further avers that, on June 9, 2014, he received a response from Defendant in which, according to Claimant, Defendant resisted all discovery (id., ¶ 3). Claimant objects to the State's refusal to provide the information he seeks in Demands 2-16, and 18.
CPLR § 3101(a) provides that there "shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof."
In Demands 2, 4, 6, 8, 10, 12 and 14 Claimant seeks the first names of various employees of the Department of Corrections and Community Supervision (hereinafter "DOCCS"). In all but two instances, Claimant knows the first initial of the employee's first name and, in the remaining instances, he knows that one of the employees is a Sergeant and the other is the Deputy Superintendent of Security at Franklin.
In Demands 3, 5, 7, 9, 11, 13 and 15 Claimant seeks the home addresses and telephone numbers of the specified DOCCS' employees in Demands 2, 4, 6, 8, 10, 12 and 14 for the stated purpose of serving subpoenas upon them so they can testify at trial.
In Demand 18 Claimant seeks the name, address and telephone number of the DOCCS' Assistant Inspector General who investigated the events of September 24, 2012 related to this Claim.
Defendant objects to all these demands on several grounds. The first is that the Claim is not yet scheduled for trial and that, pursuant to CPLR 2302, Claimant cannot issue his own subpoenas, and that he has to apply to the Court for the issuance of subpoenas. In addition, Defendant asserts that, pursuant to Public Officers Law § 96, personal information cannot be released without notifying the people involved that the information is being sought. Defendant also asserts that disclosure of the information is statutorily prohibited by Civil Rights Law § 50-a.
As stated by Defense counsel, a trial date for this Claim has not been established. Thus, at this point there is no need for Claimant to issue subpoenas for witnesses to testify at trial. In addition, any subpoenas Claimant would like issued would have to be issued by either the Clerk of the Court or a judge of this Court (CPLR 2302). At this point, there is no indication that the employees Claimant would like to subpoena cannot be properly identified by the first initial of their first name and full last name and/or job title. In addition, the subpoenas may be served on them at their business addresses. Claimant has not made any showing as to the need for their home telephone numbers. The Court further notes that, pursuant to Public Officers Law §§ 96(1)(c) and 89(2)(a), the requested information is not discoverable as an unwarranted invasion of personal privacy. The motion to compel a response to Demands 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 is denied.
Regarding Demand 18, the request for the name, address and telephone number of the Assistant Inspector General who interviewed Claimant, Defendant has offered no reason why that individual's name should not be disclosed, however, the address and telephone number are not discoverable for the same reasons as set forth above. The Court finds that a portion of this Demand is proper and Defendant is directed to provide the name of the Assistant Inspector General who interviewed Claimant regarding the September 24, 2012 incident to Claimant within 45 days from the date of filing of this Decision and Order. The remainder of the motion to compel a response to Demand 18 is denied.
Demand 16 seeks the address and telephone number of former prisoner (now Parolee) Andrew G. Byrne so that a subpoena can be issued to have him testify at trial. As stated above, the subpoena would have to be issued by the Clerk of the Court or a judge of this Court. Executive Law § 259-k and the rules promulgated pursuant thereto by the Board of Parole (see 9 NYCRR 8000.5) direct that parole records remain confidential and prohibit the release of the information sought as it would constitute an unwarranted invasion of privacy (Matter of Robles v Tracy, 275 AD2d 837 [3d Dept 2000]; Matter of Collins v New York State Div. of Parole, 251 AD2d 738 [3d Dept 1998]). The motion to compel a response to Demand 16 is denied.
July 30, 2014
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 to compel:
Papers Numbered
Notice of Motion, Affidavit in Support 1
Affidavit in Opposition and Exhibits attached 2
Filed Papers: Claim, Answer