Opinion
# 2021-038-510 Claim No. 132358 Motion No. M-96238
01-25-2021
JUSTIN JACOBS v. STATE OF NEW YORK
O'BRIEN & FORD, P.C. By: Christopher M. Pannozzo, Esq. LETITIA JAMES, Attorney General of the State of New York By: Thomas J. Reilly, Assistant Attorney General
Synopsis
Claimant's motion to compel discovery responses in claim alleging inmate-on-inmate assault granted in part. Defendant ordered to produce certain documents, or: (1) produce an affidavit of a person with knowledge that the documents do not exist; (2) move for a protective order to shield from disclosure documents that could compromise facility safety and security. Branch of claimant's motion seeking to compel defendant to produce the disciplinary history of claimant's alleged assailant held in abeyance pending in camera review of the records. Claimant's request to extend the deadline for the filing of the note of issue and certificate of readiness is granted.
Case information
| UID: | 2021-038-510 |
| Claimant(s): | JUSTIN JACOBS |
| Claimant short name: | JACOBS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132358 |
| Motion number(s): | M-96238 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | O'BRIEN & FORD, P.C. By: Christopher M. Pannozzo, Esq. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Thomas J. Reilly, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 25, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim alleges that claimant was assaulted by inmates at Clinton Correctional Facility (CF) in August 2017. Claimant now moves to compel defendant to serve upon claimant complete responses to all outstanding discovery demands. Claimant also seeks an order amending the scheduling order issued with respect to this claim. Defendant opposes the motion.
In the Notice of Motion, claimant also seeks an order compelling examinations before trial and striking defendant's answer (see Notice of Motion to Compel, dated Dec. 8, 2020), but he makes no argument in support regarding such relief. In the absence of any argument, the Court declines to order such relief.
The claim alleges that on August 22, 2017, "was attacked . . . [,] seized and unlawfully imprisoned" by fellow inmates at Clinton CF (Pannozzo Affidavit, Exhibit A [Claim No. 132358, ¶ 7]), resulting in physical and emotional injuries (see id. at ¶ 9). The claim asserts causes of action sounding in negligence, deliberate indifference, unlawful imprisonment, and violation of claimant's civil rights under the federal and state constitutions (see id. at ¶¶ 3-4, 7-8).
On January 23, 2019, claimant's counsel served on defendant a Demand for a Verified Bill of Particulars, a Notice to Produce, and Omnibus Discovery Demands (see Pannozzo Affidavit, ¶ 5, Exhibit C). Having received no response to claimant's discovery demands, claimant's counsel requested responses to the demands and sought defendant's availability for EBTs in correspondence dated June 13, 2019 (see id, ¶ 7, Exhibit E). Claimant's counsel sent a follow-up letter dated July 29, 2019 reiterating those requests after receiving no response to his June 13, 2019 letter (see id. at ¶ 8, Exhibit F). Defendant thereafter served responses to claimant's discovery demands on September 4, 2019 (see id. at ¶ 8, Exhibit G). In correspondence dated September 11, 2019, claimant's counsel identified "deficiencies" in defendant's responses, but did not receive a subsequent response from defendant (id. at ¶ 9; see id., Exhibit H). Claimant's counsel sent another letter on October 25, 2019 "in an attempt to resolve this matter short of motion practice" and asked defendant's counsel to "provide caselaw or statutory authority" relating to defendant's denials (id. at ¶ 10; see id., Exhibit I). Claimant's counsel states that although defendant's counsel has provided some responses to claimant's discovery demands, "several items of discovery remain outstanding" (id. at ¶ 11), Claimant now moves to compel defendant to provide complete responses to certain of claimant's discovery demands and to amend the scheduling order, which will be discussed in turn below.
The CPLR reflects this State's policy in favor of broad disclosure by mandating "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR § 3101 [a]; see Calhoun v Pickett, 77 AD2d 776, 776 [3d Dept 1980], affd sub nom Hoenig v Westphal, 52 NY2d 605 [1981]). The Court of Appeals has explained that "[t]he words, 'material and necessary', are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Matter of Saratoga Prop. Devs., LLC v Assessor of City of Saratoga Springs, 62 AD3d 1107, 1108-1109 [3d Dept 2009). As the Appellate Division, Third Department, has instructed,
"[c]ourts must evaluate disclosure demands on a case-by-case basis with due regard for the strong policy supporting open disclosure, while balancing competing interests such as the demanding party's need for the information, its possible relevance, the burden imposed on a party or nonparty by ordering disclosure, and the potential for confusion or delay"
(Perez v Fleischer, 122 AD3d 1157, 1158 [3d Dept 2014], lv dismissed 25 NY3d 985 [2015]). It is well settled that "a party may not be compelled to produce information that does not exist or that he or she does not control or possess, nor may a party be compelled to create new documents" (Hawley v Hasgo Power Equip. Sales, 269 AD2d 804, 804 [4th Dept 2000]; see Deep v Boies, 121 AD3d 1316, 1322 [3d Dept 2014], lv denied 25 NY3d 903 [2015] [court supervising disclosure "could not compel defendants to produce documents that do not exist"]). "The trial court is afforded broad discretion in supervising disclosure (Di Mascio v General Elec. Co., 307 AD2d 600, 601 [3d Dept 2003]; see Mitchell v Stuart, 293 AD2d 905, 906 [3d Dept 2002]), and may conduct an in camera inspection of the documents at issue to determine whether they are "relevant and material to the issues to be decided in th[e] action" (Solomon v Meyer, 103 AD3d 1025, 1026 [3d Dept 2013]).
Demand Number 1
In Claimant's Notice to Produce, Demand Number 1 sought:
"incident reports, interdepartmental memoranda (including memoranda sometimes referred to as 'to/froms'), unusual incident reports, witness statements, injury to inmate reports, video or audio tapes, photographs, reports of infraction, notices of infraction, disposition of any infraction, misbehavior reports including documents in the file of any inmate disciplined in connection with the incident."
(Pannozzo Affidavit, Exhibit C [Notice to Produce, ¶ 1]). Defendant responded to this demand by attaching a copy of the Unusual Incident (UI) packet in its response to Claimant's Omnibus Discovery Demands (see id., Exhibit G [Response to Claimant's Notice to Produce, ¶ 1]; see also id. [Defendant's Response to Claimant's Omnibus Discovery Demands, Exhibit A (UI 17-0372 Report)]). The UI packet includes the UI report, institutional photographs of claimant and inmate Lapan, his alleged assailant, institutional memoranda prepared with regard to the UI investigation, an inmate injury report and medical records for claimant, a cell frisk/contraband receipt for Lapan, Inmate Misbehavior Reports (IMRs) that were issued to claimant and Lapan with regard to the alleged assault, urinalysis requests for claimant and Lapan, chain of custody forms for a wooden dowel that Lapan allegedly used in the assault, and photographs of claimant and Lapan (see id.). Claimant's counsel states that although defendant provided the UI report in response to this demand, claimant's demand "included several items of additional information that were not present in the" UI report, and that "[s]ince the date of the September 11, 2019 [letter], counsel for . . . Defendant has not identified what documents they are in possession of and what documents they are not in possession of" (id. at ¶ 13). Defendant has not specifically responded to claimant's arguments seeking production.
It is clear from defendant's disclosure of the UI packet that some of the documents that claimant requested in this demand were indeed disclosed, i.e. the UI report, interdepartmental memoranda, the inmate injury report, photographs and IMRs. However, there was no indication from defendant in its responses either to the demand or to this motion that the documents disclosed in the UI packet constituted the universe of documents in its possession that are responsive. Therefore, defendant is directed to either produce documents responsive to the other categories of documents identified in the demand, or, in the alternative, produce an affidavit or an affirmation of a person with personal knowledge stating that those documents do not exist.
Demand Number 2
Demand Number 2 in claimant's Notice to Produce sought:
"all files, including each closing memorandum and summary, made in the course of any completed investigation by the New York State Commission on Corrections, New York State Department of Correctional Services, [sic] Inspector General or Internal Affairs Division (or similar groups) into the incident. If the incident or the conduct of defendants involves [sic] in the incident is the subject of an ongoing investigation or a disciplinary proceeding, criminal investigation or outstanding indictment or information, kindly so indicate."
(id., Exhibit C [Notice to Produce, ¶ 2]). Defendant responded to this demand by stating "Not applicable" (id., Exhibit G [Response to Claimant's Notice to Produce, ¶ 2]). Claimant's counsel argues that defendant failed to answer claimant's counsel's inquiry in his September 11, 2019 letter as to "why the [Demand] was 'not applicable'" and "if an investigation was conducted and completed as required by the New York State Commission on Corrections" (id. at ¶ 16). In response to the motion, defendant's counsel states that "[t]he only investigation regarding this incident is the [UI] investigation and the documents related to that investigation have long been disclosed" (Reilly Affirmation, ¶ 8). Defendant's counsel affirms that "all correspondence relating to the investigation of the subject incident are included in the UI packet previously disclosed" (id. at ¶ 9).
Here, defense counsel has affirmed that the only investigation that was conducted into this incident was the UI investigation and that no other investigative file exists, and, thus, that those records constitute the only documents responsive to this demand. Inasmuch as there is no evidence that any other documents responsive to that demand exist, and defense counsel affirms that all documentation related to the UI investigation have been turned over to claimant, the Court cannot compel a further response to this discovery demand (see Deep, 121 AD3d at 1322-1323 [trial court "properly exercised its discretion" in denying motion to compel "by accepting defendants' affirmation that they had produced all records" responsive to the discovery demand]; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032 [3d Dept 2012] [motion to compel disclosure properly denied where "the record (was) devoid of any evidence that defendant ha(d) access to or (was) withholding any of the requested documents, and a party cannot be compelled to produce documents that do not exist"]).
Demand Number 4
In claimant's Notice to Produce, Demand Number 4 sought "from Claimant's inmate file for the period of incarceration during which the incident arose (and any other Facility file for Claimant, if any defendant intends to rely on any of its contents) all documents concerning any occasion that Claimant was subject to discipline" (Pannozzo Affidavit, Exhibit C [Notice to Produce, ¶ 4]). Defendant responded to this demand by attaching claimant's disciplinary records for incidents on August 22, 2017 and February 24, 2017 (see id., Exhibit G [Response to Claimant's Notice to Produce, ¶ 4; Exhibit A]). Claimant argues that defendant has "identified no reasoning for their failure to provide the entire copy of the Claimant's inmate file for his stay at Clinton [CF]" (id. at ¶¶ 17-18). Defendant has not addressed this demand in its opposition to the motion. However, inasmuch as this demand requested "all documents concerning any occasion that Claimant was subject to discipline" (id., Exhibit C [Notice to Produce, ¶ 4] [emphasis added]), and defendant produced disciplinary records for two incidents, claimant's assertion in this motion that he is entitled to the entirety of claimant's inmate file during his incarceration at Clinton CF is puzzling. Furthermore, claimant has not asserted that he was subjected to other disciplinary actions, or that defendant's production of the documents with regard to the two incidents is otherwise incomplete. Therefore, the Court will not compel defendant to provide further disclosure with regard to this demand.
Demand Number 5
Demand Number 5 in claimant's Notice to Produce requested that defendant "[i]dentify the computer system used by the Clinton [CF]" (id., Exhibit C [Notice to Produce, ¶ 5]). In response, defendant objected to the demand as "calling for material that are privileged [sic] and the disclosure of which could compromise the safety and security of a correctional facility and acts against the valid penological interest" (id., Exhibit G [Response to Claimant's Notice to Produce, ¶ 5]). Claimant argues that defendant "[did] not identify any statute or caselaw supporting" that position, and "[m]ere identification of the name of the system would and should not be privileged" (id. at ¶ 20). In opposition to the motion, defendant argues that "this demand is vague and improperly overbroad" inasmuch as it is unclear whether it seeks identification of "the system used for emails as opposed to [the] system used to record and create notes regarding inmate movement, criminal history as opposed to the program used to generate correspondence" (Reilly Affirmation, ¶ 10). Defendant questions the "possible relevance" of the identification of the Clinton CF computer system to an allegation of failure to protect stemming from "an altercation [claimant] admittedly instigated," and further argues that "there is of course a security issue involved where [Department of Corrections and Community Supervision's] computers house sensitive information of thousands of people, staff and inmates alike" (id.).
Weighing the competing interests, as it must, the Court concludes that although simply identifying the computer system used at Clinton CF poses very little burden to defendant, and that defendant has failed to provide the affidavit of a person with knowledge that disclosure of this evidence would pose a security threat, claimant has failed, at the outset, to demonstrate the relevance of the identification of the computer system used at Clinton CF to the prosecution of his claim. Accordingly, the motion insofar as it seeks this information will be denied.
Demand Number 6
In claimant's Notice to Produce, Demand Number 6 sought "[a] copy of the entire computer file related to the incarceration of Claimant" (Pannozzo Affidavit, Exhibit C [Notice to Produce, ¶ 5]). In response and that defendant objected to the demand as "overbroad, unduly burdensome and not reasonably calculated to seek discovery of admissible evidence" (id., Exhibit G [Response to Claimant's Notice to Produce, ¶ 6]). Claimant's counsel argues that he "cannot say how this information in . . . [c]laimant's computer file would not either contain relevant evidence or lead to the discovery of relevant evidence," and that defendant "has identified no statutory law or caselaw which prevents disclosure of same" (id. at ¶ 22). In response to the motion, defendant argues that it has disclosed claimant's "guidance file, his disciplinary history, his movement record, program assignment and classification analysis and medicals," and argues that "these records satisfy [the demand for claimant's computer file] and the demand for his inmate file" (Reilly Affirmation, ¶ 11).
As an initial matter, request for a "copy of the entire computer file related to the incarceration of Claimant" (Pannozzo Affidavit, Exhibit C [Notice to Produce, ¶ 6] [emphasis added]) is vague and does not specifically and sufficiently describe the types of electronic records sought. Moreover, claimant fails to argue in reply how the records defendant asserts were disclosed in response to the request were incomplete. Accordingly, the Court will not compel defendant to respond further to this demand.
Demand Number 7
Demand Number 6 of claimant's Notice to Produce requested "[a] copy of the entire disciplinary file and incarceration designation files related to the incarceration of . . . Lapan," claimant's alleged assailant (id., Exhibit C [Notice to Produce, ¶ 7]). Defendant responded to the demand by stating that it was "'not permitted to disclose such information'" (id., Exhibit G [Response to Claimant's Notice to Produce, ¶ 7]). Claimant's counsel argues that defendant failed to "identify any statutory law or caselaw that prevented" disclosure of that information and that the alleged assailant's "disciplinary history, and . . . Defendant's knowledge of same is certainly relevant to the proceeding herein" (id. at ¶ 24). In response, defendant's counsel states that it is willing to provide the file related to claimant's alleged assailant subject to a Court order and will provide those records for in camera review (see Reilly Affirmation, ¶ 7). Defendant states that a Court order is required because Public Officers Law § 96 (2) (c) "prohibits the disclosure of 'personal information pertaining to the incarceration of an inmate at a state correctional facility which is evaluative in nature' " (id., quoting Public Officers Law § 96 [2] [c]), and because the file "includes information regarding [the inmate's] movement within the department," which is designated as "confidential security information" pursuant to DOCCS Directive No. 0410 (id.).
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]; see Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). However, "negligence may not be inferred merely because an incident occurred" (Sanchez v State of New York, 36 AD3d 1065, 1066 [3d Dept 2007], lv denied 8 NY3d 815 [2007]; see Vasquez, 68 AD3d at 1275-1276). Rather, in negligence claims against the State for inmate-on-inmate attacks, the scope of the State's duty of care is to provide "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985] [emphasis added]; see Sanchez, 99 NY2d at 253; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]). Foreseeability in such cases includes not only what the State actually knew about the risk of an attack on the claimant, but also what it "reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254 [emphasis in original]; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). An inmate-on-inmate assault may be foreseeable where defendant knew or reasonably should have known that the claimant's attacker was violent or prone to assaultive behavior (see e.g. Littlejohn v State of New York, 218 AD2d 833, 834-835 [3d Dept 1995]).
Here, it is manifest that Lapan's disciplinary history is relevant to the prosecution of his claim to the extent that he was previously disciplined for prior assaultive acts (see Wilson v State of New York, 36 AD2d 559, 559 [3d Dept 1971]; Mosby v State of New York, UID No. 2014-018-542 [Ct Cl, Fitzpatrick, J., Oct. 27, 2017]). However, defendant has not submitted Lapan's disciplinary history to the Court for an in camera review in connection with this motion. Accordingly, an in camera review of Lapan's disciplinary history is necessary for the Court to determine what portion or portions of that history is discoverable, and defendant is directed to submit to the Court for its review those records.
As for the incarceration designation files related to Lapan's incarceration, defendant's counsel argues summarily that those files are designated as "confidential security information" pursuant to DOCCS Directive No. 0410 (Reilly Affirmation, ¶ 7), and has made no evidentiary showing that the files were indeed "confidential security information" that may be subject to any privilege (see Coleman v State of New York, UID No. 2019-038-555 [Ct Cl, DeBow, J., June 20, 2019]; cf. Edwards v State of New York, UID No. 2017-038-551 [Ct Cl, DeBow, J., July 17, 2017]). Therefore, defendant must comply with this demand and produce those files. However, recognizing that disclosure of these files could implicate security concerns, defendant may move for a protective order that shall be accompanied by an affidavit of a person with personal knowledge demonstrating that such disclosure could compromise facility safety and security.
Demand Numbers 8 and 18
In claimant's Notice to Produce, Demand Number 8 sought "[a] copy of any and all written guidelines or procedures at the Clinton [CF] or State of New York with regard to supervision of inmates, designation of housing or other custody including, but not limited to, protective custody" (Pannozzo Affidavit, Exhibit C [Notice to Produce, ¶ 8]). Similarly, Demand Number 18 sought "[a] copy of the policies and procedures manual for Clinton [CF]" (id., Exhibit C [Notice to Produce, ¶ 14]). Defendant objected to both demands on the grounds that it "call[ed] for material that are privileged [sic] and the disclosure of which could compromise the safety and security of a correctional facility and acts against the valid penological interests" (id. Exhibit G [Response to Claimant's Notice to Produce, ¶¶ 8, 18]). Claimant's counsel argues that defendant's "response [to Demand Number 8] is without merit" because the demand for those materials "goes to the very heart of the . . . claim and Claimant is certainly allowed discovery as to the guidelines as identified therein" (id. at ¶ 26). Claimant's counsel argues that defendant "provided no statutory law or caselaw for their refusal to provide [the] information" requested in Demand Number 18 and that "a copy of the policies sand procedures manual for . . . Clinton [CF] is certainly discoverable relating to whether or not same were followed" with respect to the incident that forms the basis of this claim (id. at ¶ 30). Defendant argues that Demand Number 8 "is certainly overbroad and vague and includes documents that would have confidential security information" (Reilly Affirmation, ¶ 12). Further defendant argues that "[w]here the request for materials originates from within a prison setting, courts have consistently recognized the inherent security and safety concerns that arise within such a context and denied disclosure where the materials could endanger the life or safety of a person" (id.). Finally, defendant argues that "the procedures and policies of Clinton CF is a collection of FOMs with respect to various aspects of operating a correctional facility," that defendant has "provided the FOM concerning protective custody that was applicable at the time of the alleged occurrence," and that if claimant were to "make his demand for FOMs concerning such broad categories as 'supervision of inmates' and 'designation of housing' more specific and tailored to this case, defendant would consider the same" (id.). Defendant has not specifically addressed this Demand Number 18 in its opposition to the motion.
Although defendant does not define what a "FOM" is, it presumably refers to a Facility Operations Manual (see Canales v State of New York, UID No. 2016-044-013 [Ct Cl, Schaewe, J., Dec. 14, 2016]). --------
The Court disagrees with defendant that Demand 8 is overbroad and vague inasmuch as it has identified certain documents - FOMs - that are responsive to the request. As for defendant's conclusory claim that disclosure of these documents could endanger life and safety, again defendant has made no evidentiary showing to that effect (see Coleman, supra; cf. Edwards, supra). Further, as noted above, defendant has not specifically addressed Demand Number 18, which expanded upon Demand Number 8 by requesting all policy and procedures manuals - or FOMs - from Clinton CF. Accordingly, defendant must comply with Demand Numbers 8 and 18 and disclose any FOMs from Clinton CF that it has not already produced, to the extent they exist. However, recognizing that disclosure of these documents could implicate security concerns, defendant may move for a protective order that shall be accompanied by an affidavit of a person with personal knowledge demonstrating that such disclosure could compromise facility safety and security.
Demand Number 14
Demand Number 14 of claimant's Notice to Produce requests copies "of any and all correspondence, e-mails or other transmittals submitted and/or received concerning the incident involving the Claimant during any period of his incarceration" (Pannozzo Affidavit, Exhibit C [Notice to Produce, ¶ 14). Defendant responded by stating that "[a]ll such materials are included in the UI Packet" (id., Exhibit G [Response to Claimant's Notice to Produce, ¶ 14]). Claimant's counsel states that there were no emails included with the UI report and that the "specific demand include[d] emails submitted and/or received regarding the incident," but "[n]o such response was provided" (id. at ¶ 28). Defendant's counsel affirms that "all correspondence relating to the investigation of the subject incident are included in the UI packet previously disclosed" (Reilly Affirmation at ¶ 9).
Here, defense counsel affirms that any and all communications concerning the incident were contained within the UI packet. Inasmuch as there is no evidence that any other documents responsive to that demand exist, and defense counsel affirms that all documentation related to the UI investigation have been turned over to claimant, the Court cannot compel a further response to this discovery demand (see Deep, 121 AD3d at 1322-1323; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d at 1032).
Demands for Surveillance Videos
In claimant's Omnibus Discovery Demands, claimant sought "any surveillance photographs, movies, slides, tapes, videotapes or other recordings made of the Claimant" by defendant or its agents (Pannozzo Affidavit, Exhibit C [Omnibus Discovery Demands, Demand for Photographs, Surveillance Materials, Movies, Slides, Tapes, Videotapes or Other Recordings]). Claimant also demanded "photographs, moving pictures, videotapes, slides and/or films which depict . . . [t]he scene (before, after or during) of the occurrence or occurrences that is the subject of this action" (id.). Defendant responded to these demands by providing photographs that were contained in the UI packet, and by maintaining that defendant "is not in possession of surveillance videos" (id., Exhibit G [Response to Claimant's Omnibus Discovery Demands, pg.2). Claimant argues that defendant provided an "incomplete response to the discovery demand for surveillance videos in the area where the incident occurred," and that defendant "has not yet provided an adequate response to this demand" (Pannozzo Affidavit, at ¶ 31). Claimant's counsel states that he "sent an additional letter to [defense counsel] herein in order to resolve the matter short of motion practice" (id.). Defendant has not specifically addressed this demand in its opposition to the motion.
It is axiomatic that defendant cannot be compelled to produce video recordings that are not in its possession. Here, defendant responded to claimant's demand by stating that it has no surveillance video recordings. However, defendant did not specifically address in its discovery response or in opposition whether it had in its possession any video recordings depicting the scene of the occurrence, either before, during or after the incident. Recognizing that claimant's demand contains no temporal limitation, the Court will tailor claimant's demand by directing defendant to produce any video recording depicting the scene of the occurrence from the time period of thirty minutes before through thirty minutes after the incident, to the extent such a video recording exists, or, in the alternative, produce an affidavit or an affirmation of a person with personal knowledge stating that such a recording does not exist.
Request to Amend the Scheduling Order
Claimant requests that the Court amend the scheduling order issued with respect to this claim by six months to allow for the completion of discovery of the claim on account of defendant's failure to initially respond to claimant's discovery demands for eight months and due to its incomplete responses (seePannozzo at ¶¶ 32-33). Defendant has not submitted any opposition to claimant's request, which will be granted. Accordingly, the deadline for the note of issue and certificate of readiness contained in the Court's January 30, 2019 Preliminary Conference Order will be extended nunc pro tunc to August 1, 2021.
Accordingly, it is
ORDERED, that claimant's motion number M-96 238 is GRANTED IN PART, to the extent that defendant is compelled to respond within 30 days of the filing of this Decision and Order to:
(1) Demand Number 1 in claimant's January 23, 2019 Notice to Produce by either producing documents responsive to the other categories of documents identified in the demand that were not so produced, or, in the alternative, produce an affidavit or an affirmation of a person with personal knowledge stating that those documents do not exist;
(3) that part of Demand Number 7 in claimant's January 23, 2019 Notice to Produce that seeks the incarceration designation files related to Lapan's incarceration, by producing those files, or in the alternative, defendant may move for a protective order that shall be accompanied by an affidavit of a person with personal knowledge demonstrating that such disclosure could compromise facility safety and security;
(4) Demand Numbers 8 and 18 in claimant's January 23, 2019 Notice to Produce by producing the Facility Operations Manuals (FOMs) for Clinton CF that have not yet been produced, to the extent they exist, or in the alternative, defendant may move for a protective order that shall be accompanied by an affidavit of a person with personal knowledge demonstrating that such disclosure could compromise facility safety and security;
(5) the demand in claimant's January 23, 2019 Omnibus Discovery Demand that seeks any video recording depicting the scene of the occurrence from the time period of thirty minutes before through thirty minutes after the incident, by producing such recording, to the extent such a recording exists, or, in the alternative, produce an affidavit or an affirmation of a person with personal knowledge stating that such a recording does not exist; and it is further
ORDERED, that claimant's motion number M-96238 is GRANTED IN PART, to the extent that the deadline for the note of issue and certificate of readiness contained in the Court's January 30, 2019 Preliminary Conference Order is extended nunc pro tunc to August 1, 2021; and it is further
ORDERED, that that part of claimant's motion number M-96238 that seeks disclosure of inmate Lapan's disciplinary history, as requested by Demand Number 7 in claimant's January 23, 2019 Notice to Produce, shall be HELD IN ABEYANCE pending the Court's in camera review of Lapan's disciplinary history; and it is further
ORDERED, that claimant's motion number M-96238 is DENIED in all other respects.
January 25, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Notice of Motion to Compel, dated December 8, 2020; (3) Affidavit of Christopher M. Pannozzo, Esq., sworn to December 8, 2020, with Exhibits A-J; (3) Affirmation of Thomas J. Reilly, AAG, in Opposition, dated January 13, 2021, with Exhibits A-B; (4) Preliminary Conference Order, "So Ordered" by the Hon. W. Brooks DeBow, Judge of the Court of Claims, January 30, 2019.