Opinion
# 2021-038-524 Claim No. 134345 Motion No. M-96482
04-29-2021
STEPHEN JACKS v. THE STATE OF NEW YORK
STEPHEN JACKS, Pro se LETITIA JAMES, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General
Synopsis
Claimant's motion to compel disclosure and for sanctions denied. Although defendant's failure to respond to the discovery demands was inexcusable, the information sought therein was more properly sought in a bill of particulars, and defendant's inaction, under these circumstances, did not rise to the level of sanctionable conduct.
Case information
| UID: | 2021-038-524 |
| Claimant(s): | STEPHEN JACKS |
| Claimant short name: | JACKS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134345 |
| Motion number(s): | M-96482 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | STEPHEN JACKS, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 29, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for items of personal property that were allegedly lost when he was removed from his cell in the general population at Green Haven Correctional Facility (CF) and placed in the facility's infirmary under Special Housing Unit (SHU) status. Claimant now moves for an order compelling defendant to respond to his discovery demand, precluding defendant from relying upon any evidence that has been withheld, and imposing sanctions on defendant. Defendant opposes the motion.
Claimant avers that he served a demand for disclosure on defendant on April 13, 2020, and that when defendant failed to respond, he sent letters dated July 24, 2020 and November 5, 2020 seeking the disclosure set forth in the demand (see Affidavit of Stephen Jacks in Support of Motion, sworn to February 10, 2021, ¶¶ 4-6, Exhibits C-E; see also "Affirmation" of Good Faith of Stephen Jacks, sworn to February 10, 2021, ¶¶ 4-8). Defendant likewise failed to respond to claimant's July and November 2020 letters, prompting this motion, which was filed on February 19, 2021 (see "Affirmation" of Good Faith of Stephen Jacks, ¶¶ 6-8). Claimant argues that the documents sought in his April 13, 2020 discovery demand were material and necessary to his prosecution of this claim because the demand sought documents related to defendant's liability and "to any claim that [c]laimant's damages award should be reduced for any reason" (Jacks Memorandum of Law, pg. 3). Claimant argues that due to defendant's willful failure to respond to his discovery demand, he is entitled to an order compelling defendant to produce the documents demanded, and the Court "should impose appropriate sanctions" such as striking defendant's Verified Answer or the affirmative defenses raised therein, or precluding defendant from introducing any evidence in support of its affirmative defenses (id. at pg. 4).
Defendant opposes the motion, stating that defendant responded to claimant's discovery demand in a letter dated March 16, 2021 (see Rubinstein Affirmation, ¶ 3). Defendant argues that it was not possible to provide a substantive response to claimant's April 13, 2020 demand because it contains "no questions posed or documents demanded," and states that its March 16, 2021 letter "reflect[ed] this predicament" (id. at ¶ 4). The March 16, 2021 letter is attached as an exhibit to defendant's submission, and it states that defendant had received the April 13, 2020 discovery demand but that "there are no questions to which defendant can respond based on the Demand provided to us. Please revise your Demand so that we may respond accordingly" (id., Exhibit 1 [Rubinstein Letter, dated Mar. 16, 2021]).
Claimant argues in reply that it is "unacceptable" that defendant failed to respond to his April 13, 2020 discovery demand until March 16, 2021 (Jacks Reply Affidavit, ¶ 2), and that rather than "ignore [c]laimant's repeated attempts to rectify this discovery issue . . . if [d]efendant had a problem with the content of the demands or clarity, then [d]efendant could have responded seeking those things" (id. at ¶ 3). Attached to claimant's reply is a letter dated March 24, 2021 clarifying, in response to defendant's March 16, 2021 letter, that claimant is seeking "documents and responses that are relevant to [defendant's] defenses" (id. attachment [Jacks Correspondence, dated March 24, 2021, pg. 1]), and requesting the following:
"Please produce any rules, regulations, directives or laws that you will rely on in defense of this action, and explain how or why they apply in this case. Moreover, if you claim that Claimant has not stated a claim against the State of New York please explain why or how. Lastly, please state how or why the Claimant is not entitled to any compensation, or is only entitled to a reduced amount of compensation, and explain how or why the Court of Claims lacks jurisdiction in this action"
(id.).
The CPLR provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]), although privileged material may be shielded from disclosure upon an objection by a person entitled to assert the privilege (see CPLR 3101 [b]). The CPLR requires a response to discovery demands within twenty days of their service (see CPLR 3122 [a] [1]), and a motion for a court order compelling discovery is authorized only "[i]f a person fails to respond or comply with any request, notice, interrogatory, demand, question or order" (CPLR 3124).
The April 13, 2020 Demand for Disclosure that is the subject of this motion requests that defendant serve upon claimant "the following items or documents(s) for inspection and copying. If, however, you are relied upon any documents(s) attach same. If you are relying upon any Statute(s), Rule(s), Regulation(s) FOM [i.e., Facility Operation Mamuel (sic)], or Directive attach or cite same]. viz:" (Jacks Affidavit, Exhibit C [Demand for Disclosure, unnumbered paragraph]). Immediately following that demand are six enumerated paragraphs that copy, almost word for word, the six affirmative defenses raised in defendant's Verified Answer (see id. at ¶¶ 1-6). The Court agrees with defendant that it is not possible to discern from the face of that demand what documents claimant was seeking. However, as claimant rightfully observes, defendant failed to respond to the April 13, 2020 demand until March 16, 2021, almost a year after claimant made the demand, months after claimant's July 24, 2020 and November 5, 2020 letters seeking a response to his demand (see Jacks Affidavit, Exhibits D & E), and over three weeks after claimant brought the instant motion, which was filed with the Court on February 19, 2021 (see Notice of Motion to Compel and/or Preclude and/or for Sanctions, dated Feb. 8, 2021). The Court does not countenance defendant's conduct in choosing to ignore claimant's demand over the span of nearly a year when the proper course would have been simply to seek clarification from claimant as to what items of discovery he was seeking. Defendant's complete and utter failure to acknowledge in any way claimant's discovery demand and subsequent correspondence over the course of eleven months is disrespectful to claimant, and defendant's inaction has made this issue a court matter when it easily could have been resolved between the litigants without the need for motion practice. Defendant need hardly be reminded that a motion to compel disclosure is appropriate and warranted where the parties have been unable to resolve a discovery dispute, and that claimant should not have been forced to resort to this motion to compel simply to elicit from defendant a response to his discovery demand in the first place, particularly here where defendant's response was a brief three-sentence letter seeking clarification of the nature of the demand.
The Court further notes that on March 17, 2021, one day after defendant sent its letter in response to claimant's April 13, 2020 discovery demand, chambers received a facsimile letter from defendant's office seeking an adjournment of the April 7, 2021 return date of the instant motion "so we may prepare our submission" (Broughton Correspondence, dated Mar. 17, 2021). That same day, the Court responded to defendant's request, seeking clarification as to the extension sought (see DeBow Correspondence, dated Mar. 17, 2021), and chambers received no further request for an adjournment of the return date.
Nevertheless, as noted above, in the March 24, 2021 letter attached to his reply affidavit, claimant has explained the nature of his April 13, 2020 demand, namely, to obtain information regarding the affirmative defenses raised in defendant's Verified Answer, which is more properly sought through a demand for a bill of particulars for affirmative defenses (see CPLR 3041, 3042) rather than a discovery demand under CPLR article 31. Therefore, defendant will not be compelled to respond to the April 13, 2020 discovery demand pursuant to CPLR 3124. Because the information sought in the April 13, 2020 discovery demand was not the proper subject of a discovery demand, and because defendant thus will not be compelled to comply with that demand, the Court likewise declines to impose sanctions pursuant to CPLR 3126. Although the Court finds inexcusable defendant's conduct in failing to acknowledge claimant's April 13, 2020 demand and subsequent correspondence, the Court concludes that defendant's willful inaction does not rise to the level of "a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation" (Forman v Jamesway Corp., 175 AD2d 514, 515 [3d Dept 1991]). Defendant is advised, however, that the Court will not hesitate to impose sanctions under appropriate circumstances in the future should this pattern of inaction continue.
Claimant is free to serve on defendant a demand for a bill of particulars pursuant to CPLR 3042 (a) and may move to compel compliance with the demand in the event defendant "fails to respond to [the] demand in a timely fashion or fails to comply fully with [the] demand" (CPLR 3042 [c]).
Accordingly, it is
ORDERED, that claimant's motion number M-96482 is DENIED.
April 29, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 134345, filed January 24, 2020; 2. Verified Answer, filed February 28, 2020; 3. Notice of Motion to Compel and/or Preclude and/or for Sanctions, dated February 8, 2021; 4. Affidavit of Stephen Jacks in Support of Motion to Compel and/or Preclude and/or for Any Appropriate Sanctions, sworn to February 10, 2021, with Exhibits A-E; 5. "Affirmation" of Good Faith of Stephen Jacks, sworn to February 10, 2021; 6. Memorandum of Law of Stephen Jacks in Support of Claimant's Motions to Compel, Preclude, or Sanction the Defendant for Discovery Violations, dated February 8, 2021; 7. Affirmation of Heather R. Rubinstein, AAG, in Opposition to Motion, dated March 22, 2021, with Exhibit 1; 8. Affidavit of Stephen Jacks of Reply to Defendant's Opposition to Motion to Compel & Preclude, sworn to April 2, 2021, with attachment; 9. Correspondence of Francine Broughton, dated March 17, 2021; 10. Correspondence of Hon. W. Brooks DeBow, dated March 17, 2021.