Opinion
# 2012-048-028 Claim No. 119186 Motion No. M-80782
02-06-2012
SWAN v. THE STATE OF NEW YORK
Synopsis
The Court granted Claimant's Motion seeking an Order compelling Defendant to provide responses to his Demand for Interrogatories. Case information
UID: 2012-048-028 Claimant(s): GEORGE W. SWAN Claimant short name: SWAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119186 Motion number(s): M-80782 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: GEORGE W. SWAN, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Thomas Trace, Esq. Senior Attorney Third-party defendant's attorney: Signature date: February 6, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant commenced this action seeking damages for personal injuries sustained as a result of Defendant's alleged negligence when he tripped and fell at 10:40 P.M. on September 23, 2010 while an inmate at Marcy Correctional Facility under the supervision of the Department of Correctional Services ("DOCS").Specifically, Claimant alleges that his left foot was burned and injured when, while carrying a bowl of boiling water, he fell over a duffle bag left in the entranceway of the Dorm-D-1 living area by Correction Officer Yogee. Claimant also contends that Defendant was negligent in failing to provide proper and adequate medical attention as a result of the injuries alleged. Claimant brings the instant motion pursuant to CPLR 3124, 3126, 3101 and 3103, for an order compelling Defendant to, among other things, properly respond to his Demand for Interrogatories. Defendant opposes Claimant's motion.
The Department of Correctional Services (DOCS) is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
On or about November 10, 2011, Claimant served Defendant with a Demand for Interrogatories which consisted of 50 questions regarding, in part, the events that transpired on September 23, 2010. Claimant's Demand for Interrogatories made the following numbered demands, among others:
"1. Q. Were correctional officers Yogee and T. Boda, present on Sept. 23, 2010, in dorm-D-1 at 10:40 p.m. at Marcy Correctional Facility, box 3600 Marcy, N.Y. 13403?
2. Q. Did officer Yogee, on sept. 23, 2010, have in his possession, a (luggage) duffle bag the size of 2' x 3' blue and black with straps the color of black in dorm D-1 at the time of 10:40 p.m. at Marcy correctional facility?
3. Q. Did officer Yogee leave his (luggage) duffle bag the size of 2' x 3' blue and black with straps the color of black, on the floor on the left, almost level with the red box that holds safety equiptment on sept. 23rd, 2010 on or about 10:35 p.m.?
4. Q. Could both officers T. Boda and Yogee, see through the viewing window the size of 4' x 6' c.o. boda and in front of c.o. yogee, see the plaintiff coming into the living area from the recreation room, with a bowl of boiling water?
5. Q. Did both c.o.'s boda and yogee witness injury to plaintiff on sept. 23, 2010, at 10:40 p.m., in dorm-D-1 at Marcy C.F.?
6. Q. Did c.o. yogee and T. Boda provide immediate emergency medical attention on sept. 23, 2010, at 10:40p.m.?
7. Q. DID C.O. YOGEE ORDER PLAINTIFF TO PUT HIS FOOT INTO BAG OF ICE, on sept. 23, 2010 at 10:40 p.m. in dorm D-1 at MARCY C.F.?
8. Q. Did c.o. T. Boda's shift end at 11:00 p.m. on sept. 23, 2010, in dorm-D1 at Marcy C.F.?
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16. Q. Did c.o. yogee violate state procedure by ordering plaintiff to put his foot (left) into a bag of Ice?
17. Q. Was c.o. yogee, there on dorm D-1 in marcy c.f. on business or there just visiting officer T. Boda?"
On December 2, 2011, Defendant served its Response to Interrogatories on Claimant. Said Response was authored by Correction Officer Peter Heggie, who states that "[u]pon information and belief Claimant is referring to me in his Demand for Interrogatories when he refers to Officer Yogee." By his own admission, Officer Heggie did not start his shift at the Marcy Correctional Facility Dorm-D-1 until 11:00 P.M. on September 23, 2010 and was unable to provide responses to Claimant's Interrogatories Numbered 1, 2, 3, 4, 6 and 17. In response to Interrogatory Number 5, asking if Officer Boda and Yogee witnessed the fall, Officer Heggie states "I remember it being reported to me after I started my shift." In response to Interrogatory Number 7, while conceding that he was not on duty at 10:40 P.M., Officer Heggie denies that Officer Yogee ordered Claimant to put his foot in a bag of ice at that time.In response to Interrogatory Number 8, Officer Heggie states that he does not know if Officer Boda's shift ended at 11:00 P.M. on September 23. In response to Interrogatory Number 16 directed at the alleged actions of Officer Yogee, Officer Heggie states that "I did not order Claimant to put his left foot into a bag of ice."
The Court notes that, while contending that he was not present in Dorm-D-1 at the time of Claimant's fall, in response to Claimant's Interrogatory Number 11, asking whether Defendant adequately maintained the entranceway into Dorm-D-1 on September 23, 2010 at 10:40 P.M., Officer Heggie answered "[u]pon information and belief Yes." Likewise, in response to Claimant's Interrogatory Number 13, asking if Officer Yogee left "his duffle bag in the entryway, blocking safe access into the dorm-D-1 at marcy c.f., causing serious injury to [Claimant], on sept. 23, 2010, at 10:40p.m.," Officer Heggie responded "[n]o."
In support of his Motion to Compel, Claimant contends that Officers Boda and Yogee were on duty on the date of the incident and that those individuals should prepare the responses to Claimant's Demand for Interrogatories.In opposition to Claimant's motion, Defense counsel contends that Claimant's motion, served by regular mail on December 16, 2011 and made returnable on December 28, 2011, is untimely (see CPLR 2214 [b], 2103 [b]). Accordingly, Defendant requests that Claimant's motion be adjourned 60 days to allow sufficient notice pursuant to CPLR 2214. In the alternative, Defendant argues that Claimant's motion should be denied based on Claimant's failure to attach to his Motion a copy of his Demand for Interrogatories and sufficiently address the Defendant's alleged deficiencies. Defendant submits that, based on the Dorm-D-1 log book, the incident forming the subject of the Claim occurred on September 22, 2010, and Defendant's Response to Interrogatories was prepared based on Claimant's erroneous allegation that the incident occurred on September 23rd. Defendant submits that, based on Claimant's allegations as to when the accident occurred, Officer Heggie, who was working 11:00 P.M. to 7:00 A.M. on September 23, 2010, was the appropriate person to complete the Responses to Claimant's Demand for Interrogatories. Defendant also advises that Defendant received the September 22nd Dorm-D-1 log book page and became aware of the identity of the Officer on duty at the time of Claimant's fall after its Response to Claimant's Demand for Interrogatories was filed.
The Court notes that Claimant's Motion to Compel relates principally to Defendant's response to Claimant's Demands directed to the Officer(s) on duty as witnesses to the events leading up to Claimant's fall. The Court has determined that these Demands encompass Demands numbered 1, 2, 3, 4, 5, 6, 7, 8, 16 and 17. Claimant further seeks an order compelling "correct medical [personnel]" to answer the Interrogatories, that Defendant produce the "correct size of steel door & Viewing window, located in Dorm D-1" and Claimant's medical records, and that Officer T. Boda correctly identify Officer Yogee's correct name and spelling (Affidavit of George W. Swan, paragraphs 4 and 5). However, Claimant's Demand for Interrogatories did not specifically seek this information. If Claimant seeks to compel disclosure of Demands not expressly addressed in this Decision, Claimant may make a further application to this Court specifically referring to the individual numbered Demands in dispute.
The applicable time period for service of a Notice of Motion and supporting papers is eight days before the date on which the Motion is noticed to be heard (see CPLR 2214 [b]). When service is by mail, five days must be added to the prescribed period for service of the Notice of Motion and supporting papers (see CPLR 2103 [b] [2]). December 16, 2011, the date the Motion and supporting papers were mailed, is twelve days before December 28, 2011, the return date of the Motion. Although Claimant's Motion was made on insufficient notice, the defect in service was waived by Defendant's opposition to the application on the merits (see Todd v Gull Contr. Co., 22 AD2d 904, 904 [2d Dept 1964]). Furthermore, while Defendant requests that the Court deny the Motion because a copy of Claimant's Demand for Interrogatories was not part of the papers served with the Motion, a copy of Claimant's Demand was filed with the Court and, based upon Defendant's Response also filed with the Court, the Court finds that Defendant has suffered no prejudice from this omission.
CPLR § 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." Accordingly, disclosure is required "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). When one party fails to respond to or comply with a discovery demand, the party seeking disclosure may move the Court to compel compliance (see CPLR 3124). Interrogatories, a disclosure device authorized by the CPLR (see CPLR § 3102 [a]; § 3131), are written "questions sent by one party to another, answered under oath by the recipient, and returned to the sender" (Connors, McKinney's CPLR Practice Commentary C3130:1; see CPLR § 3130). As is relevant to this action, CPLR 3133 (b) requires that interrogatories be answered in writing by a representative of Defendant "having the information" (CPLR 3133 [b]; see also Connors, McKinney's CPLR Practice Commentary C3133:2 ["CPLR 3133 (b) requires that interrogatories be answered in writing under oath by the party served, or by a representative of the party having personal knowledge of the information sought"]; Vividize, Inc. v Modern Litho, 59 AD2d 616, 616 [2d Dept 1977]). Here, since Officer Heggie did not commence his shift until 11:00 P.M. on September 23, 2010, it is clear that if Claimant's fall occurred on September 23, 2010, Officer Heggie was not a witness to the events leading up to the fall that took place at 10:40 P.M. and does not have sufficient information to respond to Claimant's Demand for Interrogatories Number 1, 2, 3, 4, 6 and 17. Based on Defendant's concession that subsequent to the service of Defendant's Response to Claimant's Demand for Interrogatories, it became aware of the identity of the Officer on duty at Dorm-D-1 on the date of the accident, Defendant is obligated pursuant to CPLR § 3101 (h) to amend its Response to Claimant's Demand for Interrogatories (see Connors, McKinney's CPLR Practice Commentary C3133:3). Furthermore, the Court finds that Responses Number 5, 7, 8 and 16 are not responsive to Claimant's Demand since Officer Heggie admittedly lacks the information required to answer those Interrogatories.
Accordingly, it is hereby
ORDERED that Claimant's Motion (M-80782) is granted to the extent that Defendant is directed to provide responses to Claimant's Demand for Interrogatories numbered 1, 2, 3, 4, 5, 6, 7, 8, 16 and 17 within twenty (20) days from the filing of this Decision and Order, and Claimant's Motion is otherwise denied; and it is further
ORDERED that each date set forth in the Scheduling Order dated November 7, 2011 is hereby extended by one-hundred twenty (120) days.
February 6, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed November 19, 2010;
Notice of Motion, filed December 19, 2011;
Affidavit of George W. Swan, sworn to on December 14, 2011, with Exhibit B;
Claimant's Demand for Interrogatories, filed November 18, 2011;
Defendant's Response to Interrogatories, filed December 2, 2011;
Affirmation of Thomas Trace, Esq., filed December 27, 2011, with Exhibits A and B.