Opinion
# 2019-040-137 Claim No. 129862 Motion No. M-94494
12-23-2019
RICHARD VOGEL v. THE STATE OF NEW YORK
GOLDSTEIN & GOLDSTEIN, LLP By: Paul J. Goldstein, Esq. LETITIA JAMES Attorney General of the State of New York By: Thomas P. Carafa, Esq., AAG
Synopsis
Claimant's Motion to Compel Discovery granted in part.
Case information
| UID: | 2019-040-137 |
| Claimant(s): | RICHARD VOGEL |
| Claimant short name: | VOGEL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129862 |
| Motion number(s): | M-94494 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | GOLDSTEIN & GOLDSTEIN, LLP By: Paul J. Goldstein, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Thomas P. Carafa, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 23, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimants' Motion to compel discovery is granted in part and denied in part.
This Claim, which was filed in the office of the Clerk of the Court on June 19, 2017, and the Amended Claim, which was filed in the office of the Clerk of the Court on August 16, 2017, assert that, on November 13, 2016 at approximately 10:35 p.m., Claimant, an inmate incarcerated at Mohawk Correctional Facility, slipped and fell on a wet floor in the inmate bathroom in Building 22, Dorm D (Amended Claim, ¶ 3). It is further alleged that the floor was wet because water would "spill or squirt out onto the floor" from a urinal as a result of Defendant's negligence (id., ¶¶ 5, 7).
Claimant's counsel asserts, in his affirmation submitted in support of the Motion, that, on April 30, 2019, Correction Officer (hereinafter, "CO") Chmielewski was deposed. He was the officer on duty at the time of Claimant's fall (Affirmation of Paul J. Goldstein, Esq. [hereinafter, "Goldstein Affirmation"], ¶ 5). Counsel states that, at CO Chmielewski's deposition, he asked various questions regarding his investigation of the incident; including what inspections were done of the bathroom floor prior to the incident and after the incident, and what witnesses were present at the bathroom who could testify to notice of this condition. Following the deposition, counsel served a Notice for Discovery & Inspection dated May 7, 2019 (id., ¶ 7, & Ex. 1 attached thereto).
The Notice for Discovery & Inspection, paragraph 1, requests the facility policy or "unit rule book" referred to by CO Chmielewski at his deposition (see Ex. 4, p. 29), to ascertain what inspection of the bathroom floor prior to and after the fall should have been conducted to discover the water. CO Chmielewski indicated that the "unit rule" book, or standard book, would provide this information (Goldstein Affirmation, ¶ 8).
Paragraph 2 of the Notice for Discovery & Inspection seeks copies of the accountability sheet for CO Chmielewski's tour of November 13, 2016, which was from 10:30 p.m. to 6:30 a.m., with respect to Dorm 22D, Rooms 1 through 32, the section in which Mr. Vogel was a resident. It is asserted that CO Chmielewski testified that the accountability sheet lists the inmate's name, DIN (Department Identification Number), cell location, and cube location (see Ex. 4, pp. 46-47). The accountability sheet is printed up for each tour. Paragraph 3 of the Notice for Discovery & Inspection seeks copies of the roster of Dorm 22D, Rooms 1 through 32. Since counsel states that CO Chmielewski testified that he did not inspect the bathroom floor, either prior to or after Claimant's fall, counsel asserts that it will be necessary to attempt to contact some of the inmates who were there. Counsel further asserts that Mr. Vogel testified there were several witnesses but that he did not know their real names, just nicknames (Goldstein Affirmation, ¶ 9).
Counsel states that, on May 28, 2019, Defendant served a letter response with respect to the Notice for Discovery & Inspection and, thereafter, followed with a response to Notice for Discovery & Inspection dated June 13, 2019 (id., ¶ 10, & Exs. 5 & 6 attached).
Claimant asserts that CPLR § 3101 mandates that there shall be full disclosure of all matter material and necessary in the prosecution of an action. It makes exception to only privileged matter or attorney's work produce. He states he is requesting Defendant's inspection procedures to ascertain what steps are taken to discover dangerous conditions on the premises. With regard to the names and addresses of witnesses to the incident, Claimant states this is a typical inquiry on any slip-and-fall accident, which does not implicate any privacy rights or safety and security of any witnesses or inmate (Goldstein Affirmation, ¶ 13).
In opposition to the Motion, Defense counsel asserts that Defendant objects to Demand 3 of the Notice for Discovery & Inspection, the Inmate Roster for Dorm 22D, as the disclosure of any document that would identify an inmate's name, DIN, outside address or any other identifying information on two grounds. First, the disclosure of the requested information would be an unwarranted invasion of the other inmates' personal privacy pursuant to Public Officers Law § 87(2)(b). Defendant asserts that the personal contact information of incarcerated individuals is private information prohibited from disclosure pursuant to the New York Personal Privacy Protection Law §§ 95(6)(c), 96(1)(a)(i). Counsel asserts that Defendant does not have the authority to waive an incarcerated inmate's rights under this law. Defendant's second reason for not turning over the requested documents is that they may be used as a mechanism to circumvent the facility's security as well as the safety of the other inmates housed in the dormitory. It is asserted that such information can be used to locate and/or follow the movements of a particular inmate for the purpose of doing harm to that individual and/or can be used to gain access to an unauthorized dormitory and, thus, create a security risk to the facility, staff, and the inmates housed therein (Affirmation of Thomas P. Carafa, Esq., Assistant Attorney General [hereinafter, "Carafa Affirmation"], ¶¶ 4-10).
Counsel further states that Demand 1 of the Notice for Discovery & Inspection requests a copy of the "facility policy or unit rule book and/or post order review which contains the policies, guidelines, or manner of conduct with respect to the duties and responsibilities of a correction officer in conducting the tour of duty." Defendant asserts that the demand is palpably improper in that it is overly broad, unduly burdensome, harassing, ambiguous, confusing and irrelevant to the subject matter of this slip-and-fall claim; nor is it reasonably calculated to lead to the discovery of admissible evidence. Defendant states that such a "unit rule book" would contain materials far more extensive than is necessary to prosecute a slip-and-fall claim. Defendant further asserts Claimant had an opportunity to depose CO Chmielewski and ask him to identify the portions of the "unit rule book" that dealt with the issues involved in this Claim. Defendant also states that, if Claimant amends his demand and limits it to the portions of the "unit rule book" that pertain to this Claim, counsel would be able to request the Department of Corrections and Community Supervision (hereinafter, "DOCCS") to do a search and provide whatever documents are available, relevant, and not confidential (Carafa Affirmation, ¶¶ 12-15).
Defendant asserts that Demand 2 requests a copy of the "accountability sheet for the tour for [CO] Chmielewski from November 13, 2016, 10:30 [p.m.] - 6:30 a.m. tour, [Dorm] 22D, Rooms 1 through 32." Mr. Carafa states that DOCCS counsel has advised that they are not familiar with the term "accountability sheet" and are unable to provide such a document (Carafa Affirmation, ¶¶ 16, 17).
Demand 1 in the Notice for Discovery & Inspection requests the "unit rule book." The Court agrees with Defendant that the request as written is overly broad. Claimant should amend this demand to limit the scope of the request to the portions of the unit rule book that pertain to the issues relating to this Claim. Therefore, the request to compel Defendant to respond to Demand 1 is denied.
In Demand 2, Claimant requests a copy of the "accountability sheet" for the 10:30 p.m. to 6:30 a.m. tour of CO Chmielewski on the date of Claimant's fall. Defense counsel asserts that DOCCS counsel stated DOCCS is not familiar with the term "accountability sheet" and is unable to provide the document (Carafa Affirmation, ¶ 17).
It is axiomatic that "a party cannot be compelled to produce documents that do not exist" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]). In such cases, however, the Court concludes that Claimant "is entitled to a detailed statement, made under oath, by an employee or officer with direct knowledge of the facts as to the past and present status of the sought documents" (Wilensky v JRB Mktg. & Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]; Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000]; see Orner v Mount Sinai Hosp., 305 AD2d 307, 310 [1st Dept 2003]). As it appears that an "accountability sheet" does not exist, Defendant is to provide the affidavit to Claimant within forty (40) days of the date of filing of this Decision and Order. However, if it does exist, Defendant is to provide the document to Claimant within the same time frame.
Public Officers Law § 96 under New York's Personal Privacy Protection Law, provides that no State agency may disclose any records or personal information without the request or consent of the person involved, except under certain circumstances, such as "pursuant to a court ordered subpoena or other compulsory legal process" (Public Officers Law § 96[1][k]). The purpose of this law is "to prevent … disclosure … constituting an unwarranted invasion of privacy" (Feliciano v State of New York, 175 Misc 2d 671, 672 [Ct Cl 1997]). There must be a rational basis for such an order.
In his affirmation submitted in support of the Motion, Claimant's counsel asserts that Claimant testified there were several witnesses, however, he did not know their real names, just their nicknames (Goldstein Affirmation, ¶ 9). Claimant's stated purpose for which he needs to contact the inmates who allegedly witnessed the incident is to determine whether or not one of them could testify to notice of the condition of the bathroom floor (id., ¶¶ 6, 7). In addition, Claimant asserts that requesting the names and addresses of witnesses is a typical inquiry in a slip-and-fall case (id., ¶ 13). As the Court finds that Claimant has established a rational basis for the list of inmates housed in Dorm 22D, the request to compel Defendant to respond to Demand 3 is granted.
Therefore it is
ORDERED that Defendant is to provide the documents as set forth above to Claimant, at his cost, within forty (40) days of the date of filing this Decision and Order; and it is further
ORDERED that the parties are directed to enter into a confidentiality agreement to preclude Claimant from sharing any such records with any person who would not have access to such records in the normal course of employment.
For the reasons set forth above, Claimants' Motion to Compel is granted in part and denied in part.
December 23, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimants' Motion: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits Attached 1 Affirmation in Opposition and Exhibit Attached 2 Filed Papers: Claim, Answer, Amended Claim, Answer to Amended Claim