Opinion
# 2013-039-387 Claim No. 121255 Motion No. M-83581
10-28-2013
DONNIE PUGH v. STATE OF NEW YORK
Claimant's attorney: Donnie Pugh, pro se Defendant's attorney: Hon. Eric T. Schneiderman Attorney General of the State of New York By: Glenn C. King Assistant Attorney General
Synopsis
Claimant's motion to compel discovery is granted in part and denied in part.
Case information
+---------------------------------------------------------------------------+ ¦UID: ¦2013-039-387 ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant(s): ¦DONNIE PUGH ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant short name: ¦PUGH ¦ +---------------------------------+-----------------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Defendant(s): ¦STATE OF NEW YORK ¦ +---------------------------------+-----------------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Claim number(s): ¦121255 ¦ +---------------------------------+-----------------------------------------¦ ¦Motion number(s): ¦M-83581 ¦ +---------------------------------+-----------------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Judge: ¦James H. Ferreira ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant's attorney: ¦Donnie Pugh, pro se ¦ +---------------------------------+-----------------------------------------¦ ¦ ¦Hon. Eric T. Schneiderman ¦ ¦ ¦ ¦ ¦ ¦Attorney General of the State of New York¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦By: Glenn C. King ¦ ¦ ¦ ¦ ¦ ¦Assistant Attorney General ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party defendant's attorney:¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Signature date: ¦October 28, 2013 ¦ +---------------------------------+-----------------------------------------¦ ¦City: ¦Albany ¦ +---------------------------------+-----------------------------------------¦ ¦Comments: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Official citation: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Appellate results: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦See also (multicaptioned case) ¦ ¦ +---------------------------------------------------------------------------+
Decision
Claimant, an inmate proceeding pro se, filed this claim with the Chief Clerk of the Court of Claims on May 2, 2012. Claimant seeks damages arising from an injury he received on April 3, 2012 in the North Yard at Clinton Correctional Facility in Dannemora, New York. Claimant specifically alleges that he was assaulted by another inmate and that defendant State of New York failed to protect him from the assault.
Issue has been joined, and discovery is ongoing. Claimant now moves for an order, pursuant to CPLR 3126, resolving the issue of liability in claimant's favor for defendant's failure to respond to claimant's discovery demands. In the alternative, claimant seeks an order, pursuant to CPLR 3124, compelling defendant to respond to his discovery demands. Defendant opposes the motion.
This motion, originally assigned to the Honorable Frank P. Milano, was transferred to the motion calendar of the undersigned by order filed August 19, 2013.
In an affidavit in support of his motion, claimant states that, on April 14, 2013, he served upon defendant's counsel a written Notice for Discovery and Inspection. Claimant asserts that defendant "entirely failed to answer or provide access to any of the documents requested in that Notice" (Affidavit in Support of Motion ¶ 4). On May 18, 2013, claimant wrote defendant's counsel "in a good faith attempt to resolve these issues" but received no response (id. ¶ 5). Claimant argues that the evidence that he seeks, including video recordings taken of the yard at the time of the incident, is relevant to the prosecution of his claim.
Claimant has attached to his motion a copy of the Notice for Discovery and Inspection that he alleges that he served upon defendant. In it, he seeks disclosure of the following:
"1. All videotapes recording the images of the North Yard at Clinton Correctional Facility on April 3, 2012 between 7:00 p.m. and 8:00 p.m.
2. All log books kept in connection with the operation of the North Yard at Clinton Correctional Facility on April 3, 2012.
3. The name and employment position of each and every staff member at Clinton Correctional Facility who witnessed the cutting of the claimant by another inmate on April 3, 2012.
4. All the photographs taken of the claimant at the medical unit at Clinton Correctional Facility on April 3, 2012 after claimant was cut on that day."
(Affidavit in Support of Motion, at Notice for Discovery and Inspection).
In response, defendant's counsel has submitted an affirmation in which he concedes that he did not provide claimant with a timely response to his demands. Counsel has attached his responses as an exhibit to his affirmation. In response to claimant's second and fourth demands, defendant has provided the relevant pages of the log book and photocopies of photographs. With respect to claimant's first and third demands, defendant's counsel states that "[t]he videotaopes have long been taped over as is the usual course of business in the North Yard video recording" and that "[t]here were no such witnesses to your alleged assault" (Affirmation in Opposition to Motion, Exhibit A). Defense counsel argues that, because he has responded to claimant's demands, the Court should deny the motion as moot.
In reply, claimant argues that his motion is not moot because defendant's response to his discovery demands is unresponsive, inasmuch as defendant's counsel failed to "provide any affidavit or affirmation from a person with knowledge of the facts stating that the videotape was indeed taped over" and failed to explain why it destroyed the evidence sooner than statutorily authorized (Affidavit in Reply ¶ 4). Claimant also argues that counsel failed to provide him with the photographs that he sought, noting that counsel provided black and white photocopies that "are blurred to the point that virtually nothing can be seen in them" (id. ¶ 5).
Defendant's counsel has submitted a supplemental affirmation in opposition to the motion and has attached the affidavit of Martin Snow, a Lieutenant at the Clinton Correctional Facility. Therein, Snow states that he performed a diligent search for a North Yard video surveillance tape dated April 3, 2012 and has "determined that no recording for April 3, 2012 exists" (Supplemental Affirmation in Opposition, Exhibit A).
CPLR 3101 (a) provides that there "shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." CPLR 3120 (1) provides, in pertinent part, that, after commencement of an action, a party may serve upon another party a notice to produce designated documents or any other things in the possession or control of the party being served. "If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article . . . , the party seeking disclosure may move to compel compliance or a response" (CPLR 3124). Moreover, "[w]here a party fails to comply with a discovery order [or fails to disclose information that the Court finds should have been disclosed], CPLR 3126 authorizes the court to fashion an appropriate remedy, the nature and degree of which are matters entrusted to the [C]ourt's sound discretion" (Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032 [3d Dept 2012]; see CPLR 3126. Generally, "a trial court is vested with broad discretion in overseeing the discovery and disclosure process" (DG&A Mgt. Servs., LLC v Securities Indus. Assn. Compliance & Legal Div., 78 AD3d 1316, 1318 [3d Dept 2010]).
The papers before the Court reflect that defendant has responded - albeit belatedly - to claimant's demands, as set forth in claimant's Notice for Discovery and Inspection. The Court finds defendant's responses to claimant's first, second and third demands to be adequate. Thus, claimant's motion is denied, as moot, inasmuch as it seeks to compel defendant to respond to those particular demands (see Henry v State of New York, UID No. 2013-038-516 [Ct Cl, DeBow, J., Mar. 25, 2013]).
Claimant has not sought sanctions arising from defendant's failure to preserve the videotape in the instant motion. Nevertheless, even if the Court construed his arguments in reply as seeking sanctions based on spoliation of the evidence, claimant has failed to establish that sanctions are warranted (see generally Merrill v Elmira Hgts. Cent. School Dist., 77 AD3d 1165, 1166-1167 [3d Dept 2010]; Dobson v Gioia, 39 AD3d 995, 998 [3d Dept 2007]).
Claimant's fourth demand seeks disclosure of "[a]ll the photographs taken of the claimant at the medical unit at Clinton Correctional Facility on April 3, 2012 after claimant was cut on that day" (Affidavit in Support of Motion, at Notice for Discovery and Inspection). In response to this demand, defendant has provided six black and white photocopies of photographs. The Court agrees with claimant that the photocopies are of such poor quality that they are essentially useless to claimant. Defendant's counsel has provided no explanation for the poor quality of the photocopies. As such, claimant's motion to compel discovery is granted with respect to claimant's fourth demand. Defendant is ordered to respond to claimant's fourth demand with color photocopies of the photographs or black and white photocopies of the photographs that fairly and accurately depict the subject matter, or provide claimant with an explanation as to why the photocopies already provided are the best evidence that defendant is able to produce.
Finally, inasmuch as claimant seeks an order imposing sanctions on defendant pursuant to CPLR 3126 for its failure to timely respond to claimant's demands, the Court declines to impose such. Claimant has demonstrated no prejudice arising from the delay in defendant's response, and there is no indication that the delay was wilful or in bad faith (see Hameroff & Sons, LLC v Plank, LLC, 108 AD3d 908, 909 [3d Dept 2013]; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d at 1033).
Based upon the foregoing, claimant's motion is granted to the extent that defendant is ordered to respond to claimant's fourth demand, as provided herein. The motion is otherwise denied in all respects.
October 28, 2013
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated June 8, 2013;
2. Affidavit in Support of Motion by Donnie Pugh, sworn to on June 12, 2013, and attached exhibit;
3. Affirmation in Opposition to Motion by Glenn C. King, AAG, dated July 17, 2013, and attached exhibit;
4. Affidavit in Reply by Donnie Pugh, sworn to on July 29, 2013; and
5. Supplemental Affirmation in Opposition by Glenn C. King, AAG, dated August 30, 2013, and attached exhibit.