Opinion
# 2020-041-006 Claim No. 122187 Motion No. M-94343
02-20-2020
SHIKEMA WILLIAMS, as Administratrix of the Estate of FREDERICK VELEZ v. THE STATE OF NEW YORK
JEFFREY ROTHMAN, ESQ. HON. LETITIA JAMES New York State Attorney General By: Albert DiGiacomo, Esq. Assistant Attorney General
Synopsis
Claimant's motion to strike answer in claim alleging that correction employees caused or contributed to death of inmate stabbed by fellow inmate is denied.
Case information
| UID: | 2020-041-006 |
| Claimant(s): | SHIKEMA WILLIAMS, as Administratrix of the Estate of FREDERICK VELEZ |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122187 |
| Motion number(s): | M-94343 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | JEFFREY ROTHMAN, ESQ. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Albert DiGiacomo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 20, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves pursuant to CPLR 3126 for an order striking defendant's answer for "its willful and contumacious obstruction" of the "discovery process," or, alternatively, for an order compelling defendant to produce the "multiple items of documentary discovery that it owes Claimant by a date certain, and striking defendant's Answer if it fails to do so." Claimant further requests an extension of her date for serving and filing a Note of Issue. Defendant opposes the claimant's motion.
The claimant was granted permission to file a late claim by a Decision and Order, filed November 7, 2012 (Williams v State of New York, UID No. 2012-048-065, Motion No. M-81432 [Ct Cl, Bruening, J., Sept. 26, 2012]), in which the Court described the incident underlying the claim as follows:
"Frederick Velez, who was an inmate at Oneida Correctional Facility, died on April 25, 2009, two hours after having been stabbed with a shank and beaten by a fellow inmate, Jose Rodriguez, after the two argued during a game of checkers. [The claim is] predicated on Defendant's alleged negligence in failing to protect Mr. Velez and in the hiring, screening, training, retention and supervision of its employees."
Significant for purposes of this motion, the Williams late claim Decision and Order granted claimant permission to, specifically:
"[F]ile a Claim pursuant to Court of Claims Act § 10 (6) only to the extent that the Proposed Claim alleges a cause of action by Shikema Williams, as Administratrix of the Estate of Frederick Velez, for damages for Mr. Velez's conscious pain and suffering based on Defendant's alleged negligence in failing to protect Frederick Velez."
According to the affirmation of claimant's attorney, the "altercation between the two inmates leading up to the homicide was protracted, and the murder weapon was a shank fashioned from a piece of a DOCCS-manufactured metal locker."
The claimant's expansive discovery demands primarily relate to records and documents, allegedly created at Oneida Correctional Facility, for a period of ten (10) years prior to the incident date of April 24, 2009. Oneida Correctional Facility ceased operations on August 31, 2011, approximately twenty-eight (28) months after the incident which resulted in claimant/decedent's death, and more than a year before the claim was filed.
According to the defendant, the Oneida Correctional Facility records "were to be maintained pursuant to Directive 2011, were ultimately shipped to Mohawk Correctional Facility, where they continued to be maintained and destroyed in accordance with Directive 2011."
The claim was served on December 28, 2012 and document discovery apparently began in early 2013.
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]).
The Court notes that it has issued two prior orders in this action regarding applications by claimant to compel discovery and/or strike defendant's answer: Williams v The State of New York, #2015-041-076, Claim No. 122187, Motion Nos. M-86234 and M-86234 [Milano, J., December 16, 2015] and Williams v The State of New York, #2017-041-024, Claim No. 122187, Motion Nos. M-89503 and M-89503 [Milano, J., March 28, 2017].
The Court further notes that there has been voluminous discovery provided to claimant by defendant, including disclosure of allegedly privileged materials after the Court's in camera review.
Defendant has also provided extensive additional document discovery in response to the claimant's instant motion.
Defendant offers a detailed affirmation in opposition to the motion to strike the answer, with voluminous attached exhibits, responding to each item which was allegedly not disclosed to claimant pursuant to claimant's demands.
Defendant has further provided the affirmation of an Assistant Counsel employed by the Department of Corrections and Community Supervision (DOCCS) and the affidavits of two DOCCS employees. The affirmation and affidavits offered by defendant demonstrate that defendant has made a diligent and comprehensive effort to comply with the claimant's demands. These efforts included a search of the Oneida Correctional Facility records maintained at Mohawk Correctional Facility, as well as an effort to determine "the availability of any documents stored outside Mohawk Correctional Facility and that might be responsive to claimant's demands."
Defendant also aptly points out that many of the subject discovery demands were not made until nine to ten years after the claim accrued in 2009 and that the demands seek records from a closed facility beginning ten (10) years prior to the accrual of the claim. Defendant argues that:
"As set forth in Directive 2011, most of these documents would have been destroyed in the normal course of business by the end of 2014 being four (4) and five (5) years prior to the claimant's demands being made [and to] the extent that these demands are relevant to this claim, the defendant has turned over all documents that are still available."
Significantly, claimant has not offered a reply affidavit or affirmation in response to the defendant's factual representations set forth in opposition to claimant's motion to strike the answer. Moreover, claimant's discovery demands are vast, broad and burdensome, and given that the requests seek records preceding the claim incident by ten (10) years, the records are of substantially diminished, if any, relevance. Further, defendant has already provided claimant an exceedingly large volume of discovery in response to claimant's demands. Finally, Judge Bruening's grant of late claim relief narrowed the parameters of the claim to a specific and single cause of action involving the not uncommon circumstance of a correctional facility inmate upon inmate assault.
The Court finds that claimant has not shown deliberate, willful and contumacious conduct on the part of defendant sufficient to justify the drastic remedy of striking the defendant's answer (see D.A. Bennett LLC v Cartz, 113 AD3d 945, 946 [3d Dept 2014]).
Claimant's motion for an order striking defendant's answer or, alternatively, for an order compelling defendant to produce certain documents by a date certain, and striking defendant's answer if it fails to do so, is denied.
Claimant's time to file a note of issue/certificate of readiness is extended to December 31, 2020.
February 20, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed July 30, 2019; 2. Affirmation of Jeffrey Rothman, dated July 30, 2019, with annexed exhibits and memorandum of law; 3. Affirmation in opposition of Albert D. DiGiacomo, dated October 2, 2019, and annexed exhibits and defendant's memorandum of law; 4. Affirmation of Nancy Steuhl; 5. Affidavit of Anthony Szajer, sworn to September 27, 2019; 6. Affidavit of David Bielby, sworn to September 27, 2019; 4. Claimant's memorandum of law in reply, dated January 15, 2020.