Opinion
# 2015-040-008 Claim No. 122483 Motion No. M-85728
02-24-2015
ROBERT GIST v. THE STATE OF NEW YORK
RANKIN & TAYLOR, PLLC By: Robert M. Quackenbush, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
Claimant's motion to compel defendant (1) to supplement BOP and (2) to respond to certain interrogatories and request for production of documents is granted in part.
Case information
| UID: | 2015-040-008 |
| Claimant(s): | ROBERT GIST |
| Claimant short name: | GIST |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122483 |
| Motion number(s): | M-85728 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | RANKIN & TAYLOR, PLLC By: Robert M. Quackenbush, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 24, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's motion to compel Defendant to: 1) supplement its responses to Claimant's demand for a Bill of Particulars on affirmative defenses is granted; and 2) to respond to certain of Claimant's interrogatories and request for production of documents is granted in part.
The Claim was filed in the office of the Clerk of the Court on March 12, 2013 and alleges that, on December 8, 2012, while Claimant was incarcerated at Franklin Correctional Facility ("Franklin"), located in Malone, New York, his brother informed staff at Franklin that Claimant's mother was ill and hospitalized at Buffalo General Hospital. Later that day, Franklin's Imam Ahmed was informed (Claim, ¶¶ 1, 3-4). On December 9, 2012, Franklin's Rabbi Heller confirmed with the hospital that Claimant's mother was gravely ill and informed Mr. Gist. While speaking with Rabbi Heller, Claimant said that he would like to visit his mother in the hospital (id. at ¶ 5). On December 10, 2012, a hospital representative advised Franklin staff that Claimant's mother was gravely ill and that his family was requesting that Claimant be granted a "death bed visit" (id. at ¶ 6). On the next day, December 11, 2012, hospital staff informed Franklin staff, via facsimile communication, that the death of Claimant's mother was imminent (id. at ¶ 7). On December 12, 2012, the superintendent at Franklin formally approved Claimant's request for a death bed visit. On December 14, 2012, Claimant's brother informed Franklin staff that his mother had passed away, and Franklin staff then confirmed the funeral arrangements (id. at ¶¶ 8, 11-12).
Despite the fact that the death bed visit had been approved on December 12, 2012, and despite the fact that Franklin staff knew Claimant's mother had passed away on December 14, 2012, no one at Franklin informed Claimant that his mother had died (id. at ¶ 14).
On December 17, 2012, Franklin staff allowed Claimant to go through with his death bed visit and he was sent to "Gowanus" Correctional Facility, presumably en route to see his mother one last time before she died (id. at ¶ 15).
The Court notes that it was unable to locate a correctional facility entitled Gowanus operated by the New York State Department of Corrections and Community Supervision ("DOCCS"). However, there is a Gowanda Correctional Facility ("Gowanda"), located in Erie County, New York.
At intake upon his arrival at "Gowanus," a prison nurse made a comment to Claimant about his "funeral trip." Later that day, an inmate at that facility told Claimant, in sum and substance, "I'm sorry for your loss." Only after Claimant asked a correction officer about the delay was Claimant informed that his mother had already died and that he was on a funeral trip rather than a death bed visit trip (id. at ¶¶ 16-18).
The Claim asserts that Defendant breached its duty of care to Claimant by failing to provide him with a death bed visit once the superintendent approved it and by failing to inform him of his mother's death. It is asserted that Claimant suffered emotional distress and mental anguish as a result of Defendant's negligence.
Claimant's counsel states, in his affirmation submitted in support of the motion, that Claimant served a demand for a verified bill of particulars on affirmative defenses and a set of combined discovery demands upon the State on or about October 15, 2013 (Affirmation of Robert M. Quackenbush, Esq., ¶ 16 and Exs. 6 & 7 attached). The combined discovery demands consisted of 47 numbered requests. He further avers that the State served its bill of particulars and response to Claimant's combined discovery demands on or about March 3, 2014 (id., ¶ 17 and Exs. 8 & 9 attached).
Counsel asserts that Claimant's Claim is for negligent infliction of emotional distress (hereinafter "NIED"). Thus, many of the items contained in Claimant's demand for bill of particulars sought information concerning the State's conduct on and after December 12, 2012, the date the facility superintendent approved Claimant's request for a "death bed" visit and the date, Claimant asserts, upon which the State's duty to Claimant arose (id. at ¶ 21).
Claimant objects to responses to Requests 2, 4, 6, 8 and 10 and seeks an order directing the State to submit supplemental responses thereto.
Claimant's requests and Defendant's responses thereto are as follows:
2. Describe with particularity each and every act and omission on the part of the claimant, which occurred after the Superintendent approved claimant's "death bed" visit on December 12, 2012, which allegedly caused or contributed to cause the injuries and/or damages alleged in the Claim, as alleged in defendant's First Defense.
RESPONSE: Defendant objects to the wording in this Demand as defendant is not obligated to respond to a request for a Bill of Particulars as to its Affirmative Defenses during a specific or requested time period. Defendant has responded to this Demand (see Demand Number one above) appropriately and completely based upon information it currently possess[es]. Defendant reserves the right to amend or supplement its response up to and including at the time of trial.
4. Describe with particularity each and every act and omission on the part of a third party (and identify that third party by name), which occurred after the Superintendent approved claimant's "death bed" visit on December 12, 2012, which allegedly caused or contributed to the injuries and/or damages alleged in the Claim, as alleged in defendant's Second Defense.
RESPONSE: Defendant objects to the wording in this Demand as defendant is not obligated to respond to a request for a Bill of Particulars as to its Affirmative Defenses during a specific, specified or requested time period. Notwithstanding this objection, defendant will respond to Demand Number 3 above at such time when defendant possesses enough knowledge and information to respond to said Demand. In the alternative, if defendant learns that this Affirmative Defense lacks merit, it will promptly withdraw its Second Affirmative Defense. Defendant reserves the right to amend or supplement its response up to and including at the time of trial.
6. Describe with particularity each and every act which occurred after the Superintendent approved claimant's "death bed" visit on December 12, 2012, and the manner, in which defendant contends its employees and/or agents engaged in judicial, quasi-judicial or discretionary actions or determinations, which defendant may contend entitles it to immunity from liability, as alleged in defendant's Fourth Affirmative Defense.
RESPONSE: Defendant objects to the wording in this Demand as defendant is not required or obligated to separate its Affirmative Defense into time frames. [Defendant] has completely and appropriately responded to Demand Number 5 above based upon the information it currently possess[es]. Defendant reserves the right to amend or supplement its response up to and including at the time of trial.
8. Describe with particularity each and every act which occurred after the Superintendent approved claimant's "death bed" visit on December 12, 2012, and the manner, which defendant contends constituted "probable cause" for defendant's acts and/or omissions, as alleged in defendant's Fifth Defense.
RESPONSE: Defendant objects to the wording in this Demand as defendant is not required or obligated to separate its Affirmative Defenses into time frames. [Defendant] has completely and appropriately responded to Demand Number 7 above based upon the information it currently possess[es]. Defendant reserves the right to amend or supplement its response up to and including at the time of trial.
10. Describe with particularity each and every act which occurred after the Superintendent approved claimant's "death bed" visit on December 12, 2012, and the manner, which defendant contends were within the prerogative of the sovereign [authority] for which liability was not waived by section 8 of the Court of Claims Act, as alleged in defendant's Sixth Defense.
RESPONSE: Defendant objects to the wording in this Demand as defendant is not required or obligated to separate its Affirmative Defenses into time frames. [Defendant] has completely and appropriately responded to Demand Number 9 above based upon the information it currently possess[es]. Defendant reserves the right to amend or supplement its response up to and including at the time of trial.
(see Exs. 6 and 8 to Quackenbush Affirmation [emphasis in originals])
In opposition, Defendant asserts that the purpose of the bill of particulars is to amplify the State's Answer regarding those items for which it bears the burden of proof. Defendant asserts it has responded appropriately to the demand for a bill of particulars by providing information that amplifies the Answer and provides insight into what Defendant intends to prove at trial (Affirmation of Douglas R. Kemp, Esq., ¶¶ 4, 6). In addition, Defendant avers that Claimant is not entitled to a bill of particulars in any event because he served interrogatories upon Defendant in this negligence action (id. at ¶ 7).
CPLR 3130 (1) states, in pertinent part:
Except as otherwise provided herein, after commencement of an action, any party may serve upon any other party written interrogatories. Except in a matrimonial action, a party may not serve written interrogatories on another party and also demand a bill of particulars of the same party pursuant to section 3041.
Thus, Defendant argues, since Claimant served interrogatories upon Defendant, it had no right to request a bill of particulars, let alone a supplemental bill of particulars (Kemp Affirmation, ¶ 9).
In State of New York v General Elec. Co. (173 AD2d 939, 940-941 [3d Dept 1991]), the court held that a party's failure to timely move for modification or vacatur forecloses further inquiry into the merits of a demand for a bill of particulars unless the demand is palpably improper (see Pagones v Maddox, 172 AD2d 809, 810-811 [2d Dept 1991]).
The Court stated:
While the term [palpably improper] has defied "bright-line" definition (but see Bouton v County of Suffolk , 125 AD2d 620, 624 [dissenting mem]), various recognized categories of demands have been found to be palpably improper (see, supra). Included are demands seeking material which is evidentiary in nature (see, Posh Pillows v Hawes, 138 AD2d 472, 474; Dimarco v Consolidated Rail Corp., 131 AD2d 627, 628; Bouton v County of Suffolk, supra, at 622), irrelevant to plaintiff's claim (see, Posh Pillows v Hawes, supra; Lamb v Rochester Gen. Hosp., 130 AD2d 963, 964; Peri v State of New York, 54 AD2d 997, 998; Morell v Saratoga Harness Racing, 44 AD2d 884, 885 ) or privileged (see, Ryan v Beavers, supra), or those which are unduly burdensome (see, Dimarco v Consolidated Rail Corp., supra; Nigro v Nigro, supra) or relate to matters of law (see, Morell v Saratoga Harness Racing, supra) (id. at 941).
Here, in its responses to the demand for a bill of particulars, Defendant asserted it was not required to respond to a request for a bill of particulars regarding a specific or required time period. Defendant has not asserted that any of the five demands at issue are palpably improper regarding a demand for a bill of particulars and, if so, why they were palpably improper, such as by showing that they fall within any of the recognized categories set forth above. In addition, Defendant answered both the demand for a bill of particulars and the interrogatories without raising an objection. Therefore, Claimant's motion to compel a supplemental response is granted.
We now turn to Claimant's request, pursuant to CPLR 3124, to compel Defendant to respond to certain interrogatories and requests for production contained in Claimant's combined demands.
As stated above, Claimant's combined discovery demands consisted of 47 numbered requests (Quakenbush Affirmation, Ex. 7). Claimant objects to the responses he received to Requests 14, 15, 32 and 40.
Claimant's demands and the State's responses thereto are as follows:
REQUEST NO. 14:
Produce any and all documents created or completed at Gowanda Correctional Facility or any other correctional facility upon claimant's arrival to the facility en route to the funeral visit at issue in this litigation.
RESPONSE: Defendant objects to claimant's 14th demand because it is unlikely to lead to discoverable information. The demand is irrelevant to the extent that the matter requested is not material and necessary in the prosecution of the Claim or to the allegations as set forth in the Claim. The defendant reserves the right to supplement this response up to and including at the time of trial.
REQUEST NO. 15:
Produce any and all documents which describe DOCCS' security policies and/or procedures for "death bed" and/or funeral visits, including but not limited to any such policies and/or procedures concerning whether an inmate is permitted to meet with family members during such visit[s].
RESPONSE: Defendant objects to claimant's 15th demand because it is unlikely to lead to discoverable information. The demand is irrelevant to the extent that the matter requested is not material and necessary in the prosecution of the Claim or to the allegations as set forth in the Claim. Moreover, the material cannot be released or disclosed due to security reasons. The defendant reserves the right to supplement this response up to and including at the time of trial.
REQUEST NO. 32:
Describe in detail the nature of the "error" staff at Franklin Correctional Facility made with regard to facts underlying claimant's claim (as referred to in the final paragraph of the document previously produced by claimant as C006).
RESPONSE: Defendant objects to claimant's 32nd demand because it goes to the heart of the Claim. Moreover, the demand calls for hearsay, speculation and opinion and it is not an appropriate question for a discovery demand. The defendant reserves the right to supplement this response up to and including at the time of trial.
REQUEST NO. 40:
State the full name and DIN of the inmate-porter at Gowanda Correctional Facility who spoke with claimant about the death of claimant's mother and/or any inmates at Gowanda Correctional Facility who were assigned to act as porter near the gate area on December 18, 2012.
RESPONSE: Defendant objects to claimant's 40th demand. Defendant cannot release the name or DIN number [sic] of any inmate for security reasons and privacy reasons. The defendant reserves the right to supplement this response up to and including at the time of trial.
(see Exs. 7 and 9 attached to Quackenbush Affirmation [emphasis in originals])
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 opposition to Claimant's motion, Defense counsel asserts that Defendant is withdrawing its objections to Demands 14 and 15 (Kemp Affirmation, ¶ 13). Counsel further states that, with respect to Demand 14, Defendant is in the process of determining what documents it possesses that are responsive to that request (id. at ¶ 14). With respect to Demand 15, Defendant asserts that it has disclosed the following items:
Directive 4206 - Notification of Death or Grave Illness of Offender Family Members
Directive 4901 - Transporting Prisoners
Directive 7001 - Temporary Release Programs
(id. at ¶ 15)
Defendant asserted a privilege, however, with respect to Directive 4901 on the grounds that it implicates security concerns dealing with the details of transporting prisoners outside of a correctional facility. Thus, Defendant disclosed a redacted version of Directive 4901, which its counsel states is both responsive to Claimant's discovery demands, yet complies with Defendant's security concerns, citing Banks v State of New York (UID No. 2008-039-101 [Ct Cl, Ferreira, J., Nov. 21, 2008]) (Kemp Affirmation, ¶ 16).
The State also is withdrawing its objection to Demand 32 and will provide a response, signed by an appropriate employee of DOCCS (Kemp Affirmation, ¶ 12 and Ex. A attached thereto).
Defendant reiterated its objection to Demand 40, which requests the name and DIN of the inmate-porter at Gowanda who spoke with Claimant about the death of Claimant's mother and/or any inmates at Gowanda who were assigned to act as porter near the gate area on December 18, 2012. In response to this demand, Defendant asserted an objection to the release of the names and DINs of non-party inmates. Defense counsel asserts that Claimant has not provided any cogent reason for why this information is in any way relevant to the case at bar.
Further, Defendant argues that it appears that Claimant is requesting to use this information to establish the accrual date for his NIED claim, under the apparent theory that his Claim accrued at the point in time that DOCCS' employees allegedly informed several people, but not Claimant, about his mother's death (Kemp Affirmation, ¶ 19).
Defendant also argues that:
20. The Third Department, however, has held that "[a] claim for [NIED] requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to this rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled." [Dobisky v Rand, 248 AD2d 903, 905 (3d Dept 1998)].
21. The sine qua non of this claim, then, is that allegedly untruthful information was given to the claimant, not that the information, though true, was somehow given to non-parties first.
22. To the extent that claimant would like to call the inmate-porter to testify as to claimant's damages, it is submitted that claimant himself may testify to how the news of his mother's death affected him. (Quackenbush Aff. at ¶75) Testimony from another inmate as to what he may have observed would simply be cumulative.
(id. at ¶¶ 20-22)
In reply, Claimant asserts, with respect to Request 15, that Directive 4901 should be submitted to the Court for in camera inspection.
Turning to Request 40, Claimant asserts, with respect to Defendant's relevance objection, that the State has not formally interposed a relevance objection as it has not supplemented its response to that request (Quackenbush Reply Affirmation, ¶¶ 25 & 26). Thus, Claimant asserts the relevance objection should be deemed waived pursuant to CPLR 3122(a) (id. at ¶ 26).
Claimant further asserts:
32. The STATE also argues that, in order to prove his claim for [NIED], Claimant cannot use evidence that "the information [concerning the death of Claimant's mother], though true, was somehow given to non[-]parties first." (Kemp Aff. in Opp., ¶ 21).
33. In pressing that argument, however, the STATE is ignoring Claimant's burden to demonstrate that the STATE's conduct was shocking and outrageous [see Wilson v City of New York, 294 AD2d 290, 294 (1st Dept 2002); Young v GSL Enterprises, Inc., 237 AD2d 119 (1st Dept 1997); Rocco v Town of Smithtown, 229 AD2d 1034, 1035 (4th Dept 1997), appeal dismissed 88 NY2d 1065 (1996)].
(id. at ¶¶ 32, 33)
With regard to Demand 15 and Directive 4901, "[i]t has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure" (Lowrance v State of New York, 185 AD2d 268, 268 [2d Dept 1992]; see Cirale v 80 Pine St. Corp., 35 NY2d 113 [1974]). "The hallmark of this privilege is that it is applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality" (Cirale v 80 Pine St. Corp., supra at 117). The privilege is a qualified one, applicable depending on whether "the State's interest in maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context, outweighs any interest of the claimant in seeking access to the file" [citations omitted] (Lowrance v State of New York, supra at 269).
The Court finds that Claimant has established a sufficient basis to justify a review, in camera, of Directive 4901.
The Court turns now to Request 40. The Court agrees with Claimant that, as Defendant has not formally interposed a relevance objection in its response or supplemental response to Claimant's discovery demands, the objection is waived (Roman Catholic Church of Good Shepherd v Tempco Sys., 202 AD2d 257, 258 [1st Dept 1994]; Engelhardt v City of New York, 181 Misc 2d 383 [Sup. Ct., NY Co. 1999]).
While the Appellate Division, Third Department, stated in Estate of LaMore v Sumner (46 AD3d 1262, 1264 [2007]) that [NIED] "requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to the rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled" (quoting Hart v Child's Nursing Home Co., 298 AD2d 721, 723 [3d Dept 2002], quoting Dobisky v Rand, 248 AD2d 903, 905 [3d Dept 1998]), it is possible that deposing the inmate porters could lead to admissible information regarding these issues. Thus, even assuming that a relevancy objection had been formally articulated, the Court finds that the discovery demand is appropriate.
Moreover, the objection the State did assert in its response to the request was that it could not release the names and DINs of non-party inmates because of security and privacy concerns. Defendant cites nothing more specific, however, and does not cite any specific provision which the Defendant contends is controlling. Thus, the Court concludes that Claimant is entitled to disclosure of the names, DINs, and current locations of any inmate porters working near the gate at Gowanda Correctional Facility on December 18, 2012.
Therefore, in accordance with the foregoing, Claimant's motion to compel a supplemental response to Requests 2, 4, 6, 8 and 10 of its demand for a bill of particulars regarding affirmative defenses is granted, and Defendant is directed to submit its supplemental responses within forty-five (45) days from the date of the filing of this Decision and Order. Claimant's motion to compel a response to Requests 14 and 32 of its combined discovery demands is denied as moot. With respect to Request 15, the State is directed to provide the Court, for purposes of an in-camera inspection, two copies of Directive 4901within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims. One copy shall be unredacted and the other shall be marked with proposed redactions that Defendant believes will protect any security interests or confidential information. Defendant is directed to sequentially number the pages of the records submitted. After reviewing the submissions, the Court will issue further direction indicating what, if any, portions of the documents in question shall be provided to Claimant. With respect to Request 40, the motion is granted, and Defendant is to provide responses within the forty-five (45) day period set forth above.
February 24, 2015
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, Affirmation in Support
and Exhibits Attached 1
Affirmation in Opposition
and Exhibit Attached 2
Reply Affirmation 3
Filed Papers: Claim, Answer