Opinion
# 2019-018-030 Claim No. 129852 Motion No. M-93635 Cross-Motion No. CM-93666
05-06-2019
ROBERT CARDEW v. STATE OF NEW YORK
ROBERT CARDEW Pro Se LETITIA JAMES Attorney General of the State of New York By: Sean B. Virkler, Esquire Assistant Attorney General
Synopsis
Claimant's discovery motion granted in part - denied in part. Defendant's cross motion for protective order is granted as set forth in Decision and Order.
Case information
| UID: | 2019-018-030 |
| Claimant(s): | ROBERT CARDEW |
| Claimant short name: | CARDEW |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129852 |
| Motion number(s): | M-93635 |
| Cross-motion number(s): | CM-93666 |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | ROBERT CARDEW Pro Se |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Sean B. Virkler, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 6, 2019 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion (M-93635) for an Order pursuant to CPLR 3124 compelling Defendant to provide interrogatories and provide supporting documents. Defendant opposes the motion and brings a cross motion (CM-93666) seeking a protective order.
Claimant filed a 92-paragraph claim with the Clerk of the Court on June 15, 2017, seeking damages for personal injuries he sustained when he fell on May 1, 2017, getting out of a correctional transport van at Watertown Correctional Facility and then fell again as he tried to get into the van for transport to Gouverneur Correctional Facility. Claimant also alleges that the correction officers used the wrong sized shackles to restrain Claimant causing him severe pain and injury. Defendant interposed a verified answer with 15 affirmative defenses.
The demand for interrogatories is Claimant's third discovery demand. On July 26, 2017, Claimant served Defendant with a "Combined Demands Disclosure Requests" consisting of 20 pages of almost 175 single spaced demands. On October 17, 2017, Defendant received a "Second Combined Disclosure Request" with 10 additional demands, and on December 12, 2018, a 27- page "Demand for Interrogatories," which totaled over 130 separate inquiries. Claimant alleges that Defendant failed to answer any of the interrogatories or provide supporting documents. Claimant asserts that he is using the interrogatories to limit the witnesses needed at trial or for a deposition.
In an action for personal injuries based solely upon negligence, a demand for interrogatories and a deposition may not be used by the same party without leave of Court (CPLR 3130 [1]).
Article 31 of the CPLR which governs discovery provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . ." (CPLR § 3101 [a]). This sets a broad framework for discovery as "[t]he test is one of usefulness and reason." (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Yet, discovery may be denied if the demand is found to be unduly burdensome or not "reasonably calculated" to lead to material and necessary information (Van Horn v Thompson & Johnson Equip. Co., 291 AD2d 885, 885-886 [4th Dept 2002]). As the party seeking disclosure, it is Claimant's burden to establish that the information sought is relevant to the issues raised by the claim (see Davis v Cornerstone Tel. Co., LLC, 78 AD3d 1263 [3d Dept 2010]).
Interrogatories may relate to matters permitted by the scope of disclosure described in CPLR 3101, and the answers may be used like a deposition of a party (CPLR 3131). Although CPLR 3101 authorizes liberal disclosure, it is not unlimited disclosure. Courts have the authority to "deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." (Diaz v City of New York, 117 AD3d 777, 777-778 [2d Dept 2014]; Rawlins v St. Joseph's Hosp. Health Ctr., 108 AD3d 1191, 1192 [4th Dept 2013]). Where a majority of the requested interrogatories are improper, overbroad, burdensome or offensive, it is proper for the Court to strike the interrogatories in their entirety rather than prune them (Village of Mamaroneck v State of New York, 16 AD3d 674 [2d Dept 2005]; Lernere v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249 [1st Dept 1996]; cf., Woods v Alexander, 270 AD2d 850 [4th Dept 2000]). Although many of the interrogatories are improper, the Court has chosen to address each individually.
In the demand, interrogatories 1, 2 and 3 are entirely improper and irrelevant to the issues raised in the claim for personal injuries.
For interrogatories 4 and 6, Defendant indicates that no Unusual Incident Report was prepared.
Interrogatories 5, 7, 12 seek irrelevant opinion evidence and Defendant need not respond (Peluso v Rochester Gen. Hosp., 64 AD2d 1013 [4th Dept 1978]; Siegel & Connors, NY Prac., § 361 at 675 [6th ed 2018]).
Interrogatories 8, 9, 13, 14 are improper and not relevant to the issues in the claim.
Interrogatory 10 seeks irrelevant information as no Unusual Incident Report was prepared.
Interrogatory 11 (a) may be answered.
Interrogatory 15 may be answered to the extent of whether there is such a procedure or policy in place. Any documentation should be provided to the Court in camera.
Interrogatory 16, Defendant should answer to the extent that any of the witnesses (a) through (f) have factual information regarding Claimant's failure to mitigate his damages. The request for documents is duplicative.
Interrogatory 17, Defendant should answer to the extent that any of the witnesses (a) through (g) have factual information regarding a proximate or intervening cause of Claimant's injuries. The request for documents is duplicative.
Interrogatory 18, Defendant should answer to the extent that any of the named witnesses (a) through (g) have factual information relating to Claimant's culpable conduct that caused or contributed to his injuries. The request for documents is duplicative.
Interrogatory 19, to the extent any of the witnesses (a) through (g) have identified any third party who may be responsible for Claimant's injuries, Defendant should respond. The request for documents is duplicative.
Interrogatories 20 and 21, to the extent any of the witnesses (a) through (f) have factual information relating to what risks were open and obvious and Claimant's voluntary assumption of the risk, Defendant should respond. The request for documents is duplicative.
Interrogatory 22, to the extent any of the witnesses (a) through (g) have factual information relating to actions Defendant took that were justified or reasonable as related to the stated defense should be provided. The request for documents is duplicative.
Claimant did not provide the documents to which he refers in the second interrogatory numbered 22, so the Court will not direct Defendant to respond to these questions. The interrogatory as written appears duplicative, overbroad, and confusing.
Interrogatory 23 is duplicative.
Interrogatory 24 (a) - (b) may be answered as to whether B. Hyde performed any such investigations. Claimant has previously demanded production of documents relating to the incidents set forth in the claim.
Interrogatory 25 (a), Defendant can provide which witnesses are male and for (b) through (g) which of the individuals provided Claimant with medical care for his elbow injury.
Interrogatory 26 is overbroad, duplicative, and unduly burdensome and Defendant need not respond.
Defendant's Cross-Motion For a Protective Order M-93666
Defendant's motion for a Protective Order is GRANTED as provided above.
Accordingly, Claimant's motion is GRANTED in part and DENIED in part and Defendant's motion is also GRANTED in part and DENIED in part. To the extent that Defendant needs to supplement or provide responses to any of the interrogatories, Defendant shall have 60 days from the date this Decision and Order is filed with the Clerk of the Court.
May 6, 2019
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding these motions:
M-93635
1) Notice of Motion. 2) Affidavit of Robert Cardew, sworn to February 13, 2019, in support, with attachments thereto.
CM-93666
3) Notice of Cross-Motion. 4) Affirmation of Sean B. Virkler, Esquire, Assistant Attorney General, in opposition to motion to compel and in support of cross-motion.