New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2001-011-559, Claim No. 101171, Motion No. M-63209


Synopsis


Claimant's request to renew a prior motion in which the court denied his application for leave to depose a non-party physician is denied.

Case Information

UID:
2001-011-559
Claimant(s):
SHAWN GREEN, 97 A 0801
Claimant short name:
GREEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101171
Motion number(s):
M-63209
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Shawn Green, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Kevan J. Acton, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
May 31, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant, a pro se litigant, has moved to renew a prior motion in which the court denied hisapplication for leave to depose a non-party physician. The motion was denied because Claimant had not provided a factual basis for showing that the deposition would provide information that was material and necessary to prosecution of the claim.

The claim is based upon an allegation that defendant discontinued medication/treatment to claimant without conducting an examination to determine that such was no longer needed. In the affidavit in support of the instant application Claimant maintains that the deposition is necessary to establish negligence and causation. He has also attached a copy of the consultation report prepared by the physician. Initially, it is noted that the assertion that the deposition is necessary to establish negligence and causation is insufficient because it does not explain what information the doctor possesses that will help to establish those elements. In addition, the claim and consultation report provide no insight into how the examination performed by the physician relate to the claim of negligence. Finally, claimant should be aware that because the physician is not an employee of defendant the court will not order the deposition of the physician if it is being pursued for the purpose of eliciting expert testimony needed to establish a claim of malpractice.

The motion is denied.

May 31, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Motion for Renewal dated February 28, 2001
  2. Affidavit in support of Shawn Green sworn to the 28th day of February, 2001
  3. Affirmation in Opposition of Kevan J. Acton, Esq. dated March 9, 2001