New York State Court of Claims

New York State Court of Claims

SALAZAR v. THE STATE OF NEW YORK, #2001-014-503, Claim No. 98252, Motion No. M-62414


Synopsis


On the claimant's motion to strike the Answer and for sanctions, a hearing is scheduled to hear evidence and argument as to whether in its responses to the claimant's discovery demands the defendant has wilfully failed to disclose information which ought to have been disclosed, pursuant to CPLR 3126.

Case Information

UID:
2001-014-503
Claimant(s):
ELIZABETH SALAZAR as Guardian ad Litem for DAVID SALAZAR
Claimant short name:
SALAZAR
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court of Claims does not have jurisdiction over individuals (see, Smith v State of New York, 72 AD2d 937, 938), nor does it have jurisdiction over Manhattan Psychiatric Center as an entity distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption of this application to delete named defendants "Manhattan Psychiatric Center" and "Dr. Fred Maluf."
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98252
Motion number(s):
M-62414
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Stephen A. Weinstein, Esq.By: Aram L. Erenburg, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Jeffrey H. Horowitz, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 2, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the claimant's motion to strike the Answer and for sanctions: Notice of Motion, Affirmation in Support and Exhibits annexed; Affirmation in Opposition and Exhibits annexed; Reply Affirmation.

The claim alleges that while he was a patient at Manhattan Psychiatric Center, a facility under the auspices of the New York State Office of Mental Health, the claimant lost the use of one eye, as a result of what he alleges to have been the negligence and malpractice of the defendant.

This motion seeks to strike the defendant's answer on the ground that the defendant has wilfully failed to respond to the claimant's discovery notices.

A response to the claimant's January 31, 2000 demand was served on the claimant after this motion was served and filed, as was a letter response to the claimant's notices for deposition, all of which were dated September 16, 1998.

Upon review of the claimant's reply affirmation, it appears that the claimant continues to maintain that the defendant has wilfully failed to disclose information requested in items 5 and 6 of the demand.[1]

Items 5 and 6 in the demand pertain to the defendant's Fifth Affirmative Defense which alleges:
While a patient in Manhattan Psychiatric Center, the employees of the State of New York Office of Mental Health rendered medical care, treatment and service to David Salazar. Pursuant to the Mental Hygiene Law, claimant is liable for the charges for those services.

The fee for the aforementioned services rendered is in accordance with the amount established in the Verified Claim of the New York State Office of Mental Health. The charges to date of $1,148,538.19 represent treatment rendered through March 31, 1998. Such charges are ongoing and were established by the Office of Mental Hygiene and approved by the Division of Budget in accordance with the Mental Hygiene Law. The claimant has failed to pay for all or part of the charges for the aforementioned services rendered to David Salazar while said individual was a patient at Manhattan Psychiatric Center.
Items 5 and 6 of the demand are:
5. All documents reflecting the constituent components of the daily charges for care of David Salazar contained in defendants' Bill of Particulars.

6. All documents reflecting the constituent components of the daily charges for care of David Salazar as between care for him with and without his vision impairment and loss of sight, as contained in defendants' Bill of Particulars.
The defendant's response to Item 6 is that no documents responsive to the demand exist.

The defendant's response to Item 5 consists of a document entitled "State of New York Office of Mental Health Verified Claim", which lists daily charges from October 16, 1992 through March 31, 1998 (with some dates omitted), totaling $1,148,538.19. It is the same document which was annexed to the defendant's Bill of Particulars, dated November 24, 1998. In Paragraph 7 of the Affirmation in Opposition to the claimant's motion it is stated that counsel for the defendant has been advised that "the daily charges reflected cannot be broken into component parts to show what specific treatment was rendered, and that the charges are based upon guidelines and/or regulations which OMH [Office of Mental Health] is bound to comply with."

A hearing is hereby scheduled for March 8, 2001 at 10:00 AM, to hear evidence and argument as to whether in its responses to these two demands the defendant has wilfully failed to disclose information which ought to have been disclosed. CPLR 3126.

Counsel for the defendant is directed to obtain the presence at the hearing of an employee or employees of the defendant who can provide evidence in support of the assertion that "the daily charges reflected cannot be broken into component parts to show what specific treatment was rendered, and that the charges are based upon guidelines and/or regulations which OMH is bound to comply with."

Determination of the claimant's motion will be held in abeyance pending the hearing.


February 2, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1]The claimant's objection to the defendant's letter response to the notices of deposition, on the ground that it is not sworn, is without merit.