On August 25, 2000, the following papers, numbered 1 to 5, were read on motion
by Claimant for the production of certain documents and witnesses at his trial
scheduled for September 28, 2000:
1, 2 Notice of Motion and Affidavit Annexed
3 Opposing Affirmation
4, 5 Filed Papers: Claim, Answer
Upon the foregoing papers, this motion is granted to the extent noted and
The claim herein alleges negligence and deliberate indifference to Claimant's
medical needs as a result of an incident occurring on August 19, 1997, at
approximately 10:55 a.m., when a manhole cover flipped up as a cart was pushed
over the top, and allegedly Claimant's right foot caught between the manhole
cover and the cart.
Claimant requests the appearance of a (1) civilian cook at Auburn Correctional
Facility, Mr. Kliss, who purportedly was a witness to the incident. He also
seeks (2) inmate Hassan Razi-Bey (#86-A-7405), who allegedly was standing next
to him when the incident occurred. Third, he seeks an (3) unnamed correction
officer who was on duty at the Shop Gate Post on August 19, 1997 at 10:55 a.m.,
and whose signature he alleges cannot be read on an institutional pass.
He also requests that (4) the accident and unusual incident reports written by
the Shop Gate Officer and Civilian Cook Kliss be produced.
Finally, he requests related medical records from (5) the Auburn Medical Staff,
from (6) University Medical Center at SUNY in Syracuse where he was treated, as
well as at the (7)Walsh Correctional Medical Unit in Rome, New York. Claimant
requests the presence of two (8 & 9) unnamed correction officers who
transported him to University Medical Center on or about August 25, 1997.
Finally, Claimant advises that he is seeking the expert services of a podiatrist
or orthopedic specialist to testify at trial.
With respect to medical records, the Defendant has agreed to provide medical
records from Auburn and University Medical Center (5 & 6 above) to the
Claimant, but suggests that Claimant can get any other records directly from the
provider at the place where he received treatment. Since Claimant appears to
have been an inmate at all relevant times herein, I will direct the Defendant to
provide a copy of all relevant medical reports in its possession, including
those from outside providers to the extent that the same are maintained in the
Claimant's ambulatory health records. Specifically, to the extent that the
Walsh Correctional Medical Unit (7 above) is a State correctional facility,
or provided copies of its records to DOCS, the Defendant is directed to produce
the same. Claimant may still seek other records directly from outside
providers, should he so desire. The Defendant shall also produce the
accident and unusual incident reports written by the Shop Gate Officer and
Civilian Cook Kliss (4 above).
With regard to the two correction officers (8 & 9) noted above from August
25, 1997, I do not perceive the need for their testimony and as such that
request is denied. If during the course of the trial I am persuaded otherwise,
I would revisit this decision.
In opposition the Defendant avers that this action sounds in medical
malpractice and thus suggests that all of the above, with the exception of the
medical records, are irrelevant and without probative value to any germane issue
before the court. Indeed the Defendant does not dispute the fact that Claimant
injured his toe in the prison shop on the day in question.
Since this claim can be read as alleging negligence other than that related to
his medical treatment, and while cognizant that Defendant acknowledges that
Claimant was injured in the prison shop on the day in question, I would accede
to the request to have the civilian cook, Mr. Kliss (1 above) testify.
Accordingly, if he is still employed by the Defendant at Auburn, I direct the
Defendant to produce him without the necessity of a subpoena. Claimant had
indicated that the signature of the unnamed Shop Gate Officer (3 above) was
illegible on the Institutional Pass which he allegedly attached as Exhibit A to
his motion. However, no such exhibit was attached, and thus there is nothing
before me to refer to with respect to an unnamed and otherwise unidentified
individual. Accordingly, this request is denied at this time. With respect to
Inmate Razi-Bey (2 above), if he is still incarcerated at Auburn and is willing
to testify on Claimant's behalf, I would allow his testimony to be heard, and
direct the Defendant to produce him at trial without the necessity of subpoena.
I will address the question of expert witness(es) if it becomes an issue, which
it is not at this time.
Accordingly, the motion is granted to the extent noted ,and is otherwise