Opinion
# 2019-028-503 Claim No. 128583 Motion No. M-92375
01-22-2019
ERNESTO LOPEZ v. THE STATE OF NEW YORK
ERNESTO LOPEZ, PRO SE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2019-028-503 |
| Claimant(s): | ERNESTO LOPEZ |
| Claimant short name: | LOPEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128583 |
| Motion number(s): | M-92375 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | ERNESTO LOPEZ, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 22, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on claimant's motion:
1. Request for Entry of Default;
2. Affidavit for Entry of Default by Ernesto Lopez, Claimant;
3. Defendant's Affirmation in Opposition by Matthew H. Feinberg, Assistant Attorney General and attached exhibits;
4. Reply to Defendant's Affirmation in Opposition by Ernesto Lopez, Claimant;
5. Filed papers: Claim, Answer.
Ernesto Lopez, an inmate proceeding pro se, alleges that defendant's agents at Sing Sing Correctional Facility failed to protect him from an assault by a fellow inmate in the HBB recreational yard at the facility on September 15, 2015. More specifically, Mr. Lopez asserts that on that date at approximately 9:00 p.m. to 9:15 p.m., during his return from evening yard recreation, he was attacked by an unknown assailant with a sharp metal object, resulting in a 4-inch laceration from his left earlobe to under his chin. Because no correction officers were at their assigned posts at the time, the attack and his own injury were not observed until his return to his housing unit, when he "[brought] it to the attention of the correctional staff...." [Claim No. 128583, ¶5].
A notice of intention to file a claim [NI] was received by the Attorney General's office on November 3, 2015. [Answer, ¶3]. A claim was served on September 22, 2016 and filed on the same date. [Answer, ¶4]. Defendant indicates that another claim was served on November 3, 2016. [Answer, ¶4]. Defendant served an answer on December 2, 2016, responsive to both documents it received that were styled as claims by the claimant. The only claim filed in the office of the Chief Clerk of the Court of Claims is the claim defendant acknowledges having received on September 22, 2016 in its verified answer.
Claimant now moves for a default judgment.
It is axiomatic that the defendant is required to serve an answer or a motion on claimant within 40 days of service of the claim, unless an extension has been granted. 22 NYCRR § 206.7; Civil Practice Law and Rules §3211(f).
By this Court's calculations, an answer to a claim served on September 22, 2016 should have been served and filed by November 1, 2016.
As with any motion, a claimant should include with his submission a notice of motion, and an affidavit in support of the relief requested. Civil Practice Law and Rules §2214; 22 NYCRR §206.8; see e.g. Cepeda v State of New York, UID No. 2013-049-059 (Ct Cl, Weinstein, J., Oct. 29, 2013). More specifically, with regard to a motion for a default judgment the "claimant must satisfy the provisions of CPLR 3215(f), which requires that such an application include proof of service of the claim, proof of the facts constituting the claim, and the amount due by affidavit made by the moving party." See Id.
The papers submitted on the motion here include a "Request for Entry of Default" directed to the Clerk of the Court, asking that a default be entered, an "Affidavit for Entry of Default", and an affidavit of service indicating that these papers were served on the Attorney General's office by mail.
In his "Affidavit for Entry of Default", Mr. Lopez asserts that the defendant "has not filed or served an answer or taken other actions such as responding to the plaintiff's (sic) request for discovery as may be permitted by law although more than 55 days have passed since the date of service." Claimant does not include any exhibits showing that a verified claim was served upon the defendant by a required statutory method, nor is there an affidavit of service in the Clerk's file referencing service of the claim or claims. Additionally, he does not provide proof of the facts concerning the claim, other than the filed claim itself which is not verified, and cannot therefore function as a sworn statement of the facts. See Civil Practice Law and Rules §105(u).
"A 'verified pleading' may be utilized as an affidavit whenever the latter is required."
Moreover, it appears from the Reply papers claimant served and filed on the motion that his real concern is obtaining discovery, and that he is seeking a default as a sanction. Indeed, defendant has addressed its opposition to that primary concern. [See Feinberg Affirmation]. It is also noted that claimant's discovery demand was served after defendant served and filed its answer, and no application for entry of a default was made, which may evidence a waiver of any objection to late service of the answer. Civil Practice Law and Rules §3215(c); see Retamozzo v State of New York, UID No. 2012-049-037 (Ct Cl, Weinstein, J., June 22, 2012).
Citing "Gonzalez v Gonzalez, 240 AD2d 630, 631 [2d Dept 1997] ['plaintiff's acceptance of the answer and counterclaim constituted a waiver of the late service and the default']; Karczewicz v New York City Tr. Auth., 244 AD2d 285, 285-286 [1st Dept 1997] ['By accepting defendant's answer and failing to move to strike . . . until almost two years later and only after defendant moved to dismiss the complaint, plaintiff waived any objection to late service of the answer'])."
Civil Practice Law and Rules §3101, setting forth the scope of disclosure in a civil case and applicable in the Court of Claims [see Court of Claims Act §9(9)], provides in pertinent part that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of any action, regardless of the burden of proof...." Discovery of matter that is material and necessary is generally liberally allowed, however that does not mean that a claimant may then obtain anything he may wish to examine during discovery. Allen v Crowell-Collier Publishing Co., 21 NY2d 403 (1968). The test of materiality and necessity has been interpreted as that "which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable." Allen v Crowell-Collier Publishing Co., at 406-407.
Exemptions from full disclosure are matters protected by privilege and material prepared for litigation. See Civil Practice Law and Rules §3101 (b) and (d). The burden of establishing such privilege is on the party asserting it.
When a party fails to respond in some fashion to a demand, the other party may make a motion to compel. Civil Practice Law and Rules §§3124, 3126. In support of such a motion, however, the demand at issue should be submitted along with proof of its service, and the supporting affidavit should provide the reasons why the discovery sought is material and relevant to the claim before the Court.
Claimant did not include a copy of the demand, nor has he made any specific argument with regard to the materiality and relevance of the discovery sought. The defendant, however, has included a copy of such demand and its own responses. Accordingly, in the interests of judicial economy, the Court will address the substance of the motion for compelled disclosure.
In order to establish liability on the State's part in a case involving an inmate upon inmate assault, claimant will need to prove that the State knew or should have known that there was a risk of harm to the inmate claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253 (2002); see also Flaherty v State of New York, 296 NY 342, 347 (1947). The Court must look to see if the actions taken by the State were reasonable under the circumstances. The duty of reasonable care does not, however, render the State the insurer of inmate safety. Sanchez v State of New York. The mere fact that a correction officer is not present at the precise time and place of an assault, for example, does not give rise to an inference of negligence absent a showing that officials had notice - actual or constructive - of a foreseeable dangerous situation. Colon v State of New York, 209 AD2d 842 (3d Dept 1994); Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 (1990); Huertas v State of New York, 84 AD2d 650 (3d Dept 1981).
Claimant seeks (1) a copy of a video surveillance tape from the south tower of HBB yard at Sing Sing on September 15, 2015 from 9:00 p.m. to 9:15 p.m., (2) the name of the officer assigned to the south gate of the HBB yard on September 15, 2015 from 9:00 p.m. to 9:15 p.m., as well as the names of the officers assigned to the Q and V gallery middle gate, and the Q-south gym gate, for the same date and time, and (3) a copy of the log book entries for the HBB yard covering "incidents where inmates were assaulted, cut and stabbed in the HBB yard...from...January to September of 2015." [Feinberg Affirmation, Exhibit B].
Defendant responded on January 4, 2017 to claimant's request for production of documents dated December 22, 2016, writing that it was gathering pertinent information and documents and would respond once such information was gathered. [Feinberg Affirmation, ¶¶4,5, Exhibits B, C].
On May 19, 2017 the defendant again wrote to claimant, indicating that if the video surveillance tape existed, or was not otherwise privileged, arrangements would be made to show the tape to claimant, but otherwise objecting to the claimant's requests. [Feinberg Affirmation, ¶6, Exhibit D]. With regard to producing the names of those officers stationed at the posts indicated, defendant objected, stating that the requests call for production of "confidential security information." [Ibid.]. With regard to the request for log book entries documenting assaults against other inmates in the HBB yard for the period from January to September 2015, defendant also objected saying that such request was "vague and unduly burdensome." [Ibid.].
All of claimant's demands are material and relevant to his claim that defendant's agents negligently failed to protect him from a foreseeable assault by a fellow inmate. If a video surveillance tape exists, it would be material and relevant, as would be the identities of the correction officers assigned to the relevant posts indicated, and log book entries for a limited period of other inmate assaults at the same location. Defendant's objections do not raise any privilege or statutory protection from disclosure. But as at least one other Court has observed, given the nature of information that may be contained therein, such material does implicate security concerns. See e.g., Carpio v State of New York, UID No. 2017-018-802, (Ct Cl, Fitzpatrick, J., Jan. 25, 2017).
With regard to any video surveillance tape, if such a video exists, it shall be provided to the Court for in camera inspection within 40 days of the filing date of this decision and order. If it does not now exist, an affidavit by a person with knowledge as to such surveillance, and the retention policies of the facility, shall be provided to claimant and to the Court within the same time period. The Court is mindful that the State has been on notice of the nature of this claim since the NI was served in November, 2015.
With regard to the identities of the correction officers assigned to the posts indicated at the relevant time on September 15, 2015, this may be construed as an appropriate interrogatory, thus defendant is directed to furnish same to claimant within 40 days of the filing date of this decision and order. See e.g., Caroselli v State of New York, UID No. 2015-044-551 (Ct Cl, Schaewe, J., Dec. 1, 2015).
[C]laimant asks for the names of the correction officers who were working at the C-Block desk area during the breakfast run on August 6, 2014 and why they did not contact the medical staff when claimant reported his fall. The Court finds that this paragraph constitutes a written interrogatory solely to the extent that claimant is requesting the identity of the officers working in the C-Block desk area on the specified date and defendant is directed to answer only that portion of the paragraph."
Finally, the request for log book entries of assaultive incidents in the HBB recreational yard from January to September 2015 is narrowed to direct that defendant produce to the Court for in camera inspection legible copies of log book entries for the HBB recreational yard involving assaults on other inmates, as well as the subject assault, for a period from January 1, 2015 to September 15, 2015, within 40 days of the filing date of this decision and order.
All materials furnished to the Court for in camera inspection shall be certified as to contents and scope by the agency providing them, paginated for ease of reference, and accompanied by a detailed privilege log.
Based on the foregoing, claimant's motion is denied in part and granted in part.
January 22, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims