New York State Court of Claims

New York State Court of Claims

BORGES v. THE STATE OF NEW YORK, #2000-013-028, Claim No. 99651, Motion No. M-61682


Motion to compel production of metal fragment extracted from inmate's mouth denied where third party medical center discarded fragment in ordinary course of business. Issue of whether measures should be taken to prevent prejudice to Claimant deferred to time of trial.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: EARL F. GIALANELLA, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 5, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On June 21, 2000, the Court considered the following papers on Claimant's motion for an order to produce:

1. Notice of Motion

2. Affidavit in Support of Motion

3. Affidavit of Good Faith and Annexed Exhibits;

4. Affirmation in Opposition and Annexed Exhibits

5. Claim

6. Answer

7. My Decision and Order Filed July 7, 1999 (Borges v State of New York


This claim arises from a wisdom tooth extraction that one of Defendant's dentists performed on Claimant on August 26, 1996, when he was confined to the Southport Correctional Facility (Southport). Claimant alleges that the dentist negligently broke a drill bit off in his mouth and then left it lodged in his gum.

In 1999, Defendant made arrangements for Claimant to have the offending metal fragment removed from Claimant's mouth at the Erie County Medical Center (ECMC). In anticipation of that procedure, Claimant filed a motion pursuant to CPLR 3120(b) seeking an order that would direct the ECMC to preserve the metal fragment and deliver it to Claimant so that he could use it as evidence in this case. In response, Defendant pointed out that the motion was defective because Claimant had not served ECMC. Defendant stated, however, that it had advised ECMC about Claimant's request and had received assurances from the oral surgeon, Dr. Ziter,[1] that he would try to preserve the fragment.

I denied Claimant's motion because of the procedural infirmity, but noted the representations that Defendant had made and reminded it of its legal obligation to preserve evidence within its control (see, Borges v State of New York, Motion No. M-59355, filed July 7, 1999).

ECMC removed the metal fragment on September 30, 1999. By all accounts, Claimant went to great lengths before he submitted to the procedure to make it known that he wanted ECMC to preserve the metal fragment. He had a rather heated discussion with Dr. Ziter about this issue and declined to sign a written authorization until the part of the document that gave ECMC permission to dispose of tissue and other matter was modified to indicate that efforts should be made to preserve the metal fragment.

Dr. Ziter successfully removed the fragment. In his post-operative note, he reported that "the foreign body material was curetted out, exposing a retained, what appeared to be a drill bit." Dr. Ziter forwarded the extracted tissue and fragment to pathology for further analysis. Pathology prepared a report which described the fragment as a "short piece of silver metallic material measuring 5 x 1mm."

Claimant served discovery requests on Defendant in January 2000, asking Defendant to produce "the foreign (metal) object [ITSELF] which was removed from Claimant's jaw on Sept. 30, 1999 at Erie County Medical Center... [brackets in original]." Claimant received a letter from Defendant's Assistant Attorney General dated March 9, 2000 stating that Defendant "is making inquiries with the appropriate Dental Units to see what materials are available" and "it is anticipated that the discovery demand will be answered within 30 days."

When thirty days elapsed, Claimant filed this motion. In it, he seeks production of the metal fragment from ECMC pursuant to CPLR 3120(b) and asks me to order Defendant to pay the costs associated with serving the motion upon the medical center. In Defendant's responding papers, the Assistant Attorney General states that when he tried to obtain the metal fragment for Claimant, he learned that ECMC had discarded the fragment when its pathology lab was finished evaluating it.

Based upon the Assistant Attorney General's affidavit, it is evident that neither Defendant nor ECMC can fulfill Claimant's request for the metal fragment. Therefore, Claimant's motion must be denied.

It is unfortunate that ECMC discarded the metal fragment after Claimant went to such great lengths to preserve it. However, it does not appear on this record that Defendant was in any way responsible for the loss. Nor does it appear likely that Claimant has been prejudiced. As Defendant points out, Claimant will be able to refer to both Dr. Ziter's surgical note and the pathology report at trial to show the existence of the metal fragment, its size and its resemblance to a drill bit. If it becomes evident during the trial, however, that the absence of the drill bit will affect Claimant's ability to prove his case, then I will consider whether any measures are necessary or even appropriate to prevent unfair prejudice to Claimant. However, it would be extremely difficult, if not impossible, before the trial gets underway to make any judgments on that issue.

Claimant's motion is denied.

September 5, 2000
Rochester, New York

Judge of the Court of Claims

Dr. Ziter was referred to as Dr. Zifer in my July 7th Decision and Order.