Opinion
# 2015-041-036 Claim No. 121004 Motion No. M-86221
05-11-2015
ANTHONY RUGGIERO, DIN 99-A-4419 v. THE STATE OF NEW YORK
ANTHONY RUGGIERO Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General
Synopsis
Claimant's motion to strike defendant's answer for suborning perjury and for creating a fraudulent document is denied where claimant fails to show by clear and convincing evidence that defendant knowingly attempted to hinder claimant's prosecution, and the Court's fair adjudication, of the claim.
Case information
| UID: | 2015-041-036 |
| Claimant(s): | ANTHONY RUGGIERO, DIN 99-A-4419 |
| Claimant short name: | RUGGIERO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121004 |
| Motion number(s): | M-86221 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | ANTHONY RUGGIERO Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 11, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves pursuant to CPLR 3126 for an order striking the defendant's answer and entering judgment in claimant's favor on the grounds that defendant suborned perjury and attempted to perpetrate a fraud on claimant and the Court by fabricating documentary evidence. Defendant opposes the motion.
The claim alleges that on March 30, 2011, while claimant was incarcerated at Clinton Correctional Facility (Clinton), claimant was taken to the Clinton Office of Mental Health Observation Unit (OMH) and assaulted by several Department of Corrections and Community Supervision (DOCCS) correction officers. The claim further alleges that the asserted reason that he was taken to OMH, that he was exhibiting "suicide-watch" behavior, was a pretext used by defendant's correction officers in order to assault claimant in a location "where there are no cameras, no potential witnesses" in retaliation for claimant stating that he wanted to report and document a prior assault by defendant's correction officers.
Claimant's affidavit in support of his motion to strike defendant's answer alleges that during the course of disclosure defendant produced a fabricated or altered document and further alleges that the fabricated document is offered to justify defendant's action in taking claimant to the OMH Observation Unit.
In particular, claimant states that in November of 2011, he had obtained from defendant "copies of my mental health records for the dates of March 30, 31, 2011, the date I was taken to the observation ward." The mental health records provided to claimant in November of 2011 did not contain a "Mental Health Referral Form 3150." The purpose of the Mental Health Referral Form 3150 is to document "inmate behaviors which brought about your [defendant's] decision to refer this inmate" to the OMH Observation Unit.
Claimant further states that, on February 6, 2014, the defendant served a response to claimant's notice for discovery and inspection which included a copy of a Mental Health Referral Form 3150 concerning claimant, dated March 30, 2011. The Mental Health Referral Form 3150 provided to claimant by defendant on February 6, 2014 sets forth purported behaviors of claimant which claimant evidently believes undermine his allegation that he was only brought to the OMH Observation Unit by defendant as a pretext to covertly assault claimant.
Claimant also points out that Correction Officer Wrisley (Wrisley), who purportedly filled out the Mental Health Referral Form 3150 concerning claimant, denies making "all" of the observed behavior entries in the document.
Claimant asserts, in sum and substance, that the Mental Health Referral Form 3150 copy provided to him by defendant, on February 6, 2014, was fabricated or altered by defendant for the purpose of defeating claimant's lawsuit. The basis of claimant's allegation is that the Mental Health Referral Form 3150 was not included in the mental health records originally provided to him by defendant in November of 2011.
Claimant has offered no probative evidence that defendant has engaged in, or suborned, perjury. Nor has claimant shown that defendant "provided fraudulent sworn interrogatory responses."
CPLR 3126 provides as follows:
"If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party."
"It is by now well settled that courts have discretion to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary's inspection . . . We have agreed that such sanctions might even be appropriate for the negligent disposal of evidence deemed crucial to the underlying action when the adversary had not been given an opportunity for inspection . . ." (Puccia v Farley, 261 AD2d 83, 85 [3d Dept 1999]; see Steuhl v Home Therapy Equip., Inc., 23 AD3d 825 [3d Dept 2005]; Dobson v Gioia, 39 AD3d 995 [3d Dept.2007]).
Among other remedies, the trial court "has discretion to impose sanctions for the spoliation of evidence by striking a party's pleading or instructing the jury that it may draw negative inferences from the missing evidence (see CPLR 3126; PJI3d 1:77 [2003])" (Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d 918, 920 [3d Dept 2004]).
In Mary Imogene Bassett Hosp. v Cannon Design, Inc. (84 AD3d 1543, 1544 [3d Dept 2011]), the court recently reminded that the "drastic remedy" of striking a pleading should be reserved to those situations where the offending conduct is willful, contumacious, or in bad faith:
"While a court may order dismissal of an action or a claim therein as a penalty for noncompliance with disclosure demands or orders (see CPLR 3126 [3]), this type of drastic remedy is reserved for situations where a party's failure to comply is 'willful, contumacious, or in bad faith' (Harris v City of New York, 211 AD2d 663, 664 [1995])."
This is so because "[s]trong public policy . . . favors the resolution of cases on the merits" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2d Dept 2010]).
Here, claimant is not alleging that defendant failed to comply with a demand for disclosure or that defendant destroyed evidence, as contemplated by CPLR 3126. Rather, claimant asserts that defendant has attempted to perpetrate a fraud on claimant and on the Court by fabricating or altering evidence.
The evidentiary standard to be employed in reviewing an application to strike a party's pleadings for perpetrating a fraud upon the court was recently considered in CDR Créances S.A.S., v Cohen (23 NY3d 307 [2014]), in which the Court of Appeals held, at 320-321, as follows:
"We . . . conclude that in order to demonstrate fraud on the court, the nonoffending party must establish by clear and convincing evidence that the offending 'party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action' (McMunn, 191 F Supp 2d at 445, citing Skywark v Isaacson, 1999 WL 1489038, 1999 US Dist LEXIS 23184, 50-51 [SD NY, Oct. 14, 1999, No. 96 Civ 2815 (JFK)], affd 2000 WL 145465, 2000 US Dist LEXIS 1171 [SD NY, Feb. 9, 2000]). A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns 'issues that are central to the truth-finding process' (McMunn, 191 F Supp 2d at 445). Essentially, fraud upon the court requires a showing 'that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense' (McMunn, 191 F Supp 2d at 445, quoting Aoude, 892 F2d at 1118)."
In opposition, defendant offers the affidavit of Christine Dolley, the Forensic Unit Chief of Southport Correctional Facility and an employee of OMH. Ms. Dolley was the named subject of both a Notice to Admit and Interrogatories served on defendant by claimant with respect to the disputed Mental Health Referral Form 3150.
Ms. Dolley states that claimant's allegation that the Mental Health Referral Form 3150 provided by defendant on February 6, 2014 is a recent fabrication is untrue. Ms. Dolley explains in paragraph 3 of her affidavit that:
"The referral is initiated and created by the Department of Corrections and Community Supervision. It is not considered an Office of Mental Health record. Therefore, when an inmate requests a copy of his mental health records, the inmate receives those clinical records created by the Office of Mental Health. We do not re-disclose documents created by other agencies. In addition, such a referral is kept in the correspondence file of the inmate. We do not disclose such records as we do not consider them part of the clinical file."
Ms. Dolley further states in paragraph 4 of her affidavit that:
"In this case, Assistant Attorney General Rotondi asked us for the referral when attempting to answer interrogatories. The referral (Claimant's Exhibit 7) was forwarded to him. Assistant Attorney General made the decision to disclose the document despite the fact we did not consider it part of our clinical record. Claimant's Exhibit 7 is the document we sent to Mr. Rotondi. Mr. Rotondi made the determination that Claimant was entitled to the document through the discovery process and that he would disclose the document. The allegation that the document is a recent fabrication is untrue."
In essence, Ms. Dolley asserts that the Mental Health Referral Form 3150 regarding claimant was not a part of the OMH records provided to claimant in November of 2011 because it was created by DOCCS, not OMH, and was not a part of the OMH clinical records concerning claimant.
While claimant has cast doubt on the reliability of some of the information contained in the Mental Health Referral Form 3150 by showing that Wrisley denied making several of the entries on the form, the Court finds that the circumstantial evidence of alteration or fabrication offered by claimant is insufficient to warrant striking defendant's answer in view of the sworn explanation offered by Ms. Dolley.
Claimant has failed to prove by clear and convincing evidence that the defendant knowingly attempted to hinder the Court's fair adjudication of the case and the claimant's prosecution of his claim.
Claimant's motion to strike defendant's answer is denied.
May 11, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Strike Defendant's Answer, filed January 12, 2015;
2. Affidavit of Anthony Ruggiero, sworn to January 7, 2015, and attached exhibits;
3. Affirmation of Anthony Rotondi, dated February 12, 2015, and attached exhibits;
4. Affidavit of Christine Dolley, sworn to January 29, 2015;
5. Reply Affidavit of Anthony Ruggiero, sworn to February 18, 2015.