New York State Court of Claims

New York State Court of Claims

SOW v. THE STATE OF NEW YORK, #2001-015-196, Claim No. 102262, Motion No. M-63832


Claimant's motion to strike State's responses to claimant's discovery demands denied as without basis. Claimant's demands to obtain copies of previously supplied medical records without payment of fee is likewise denied.

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:
Yusef Sow
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 16, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion "to strike the defendants [sic] response to discovery and [sic] demands" and to compel the Attorney General to provide certain documents within 30 days is denied. The claim filed April 10, 2000 seeks to recover damages for personal injuries allegedly sustained by claimant as a result of the negligence and medical malpractice of DOCS employees rendered in connection with claimant's fall from an upper bunk at Mid-State Correctional Facility on December 14, 1999.

The motion seeks an order striking the defendant's response(s) to claimant's CPLR § 3101 demands, compelling the defendant to provide documentation related to claimant's medical care and treatment within 30 days and instructing the defendant that summary judgment will be granted if the defendant does not provide the documentation within 30 days of the Court's order. The claimant has failed to convince the Court that there is any legal basis for this motion. First he failed to attach a copy of his so-called request for discovery which allegedly prompted the responses he now seeks to strike. He further failed to attach a copy of the defendant's responses.

More importantly, CPLR § 3101 (d) (2) in relevant part provides:
Materials. Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for any other party, * * * may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. ***
Here it appears that claimant had access to copies of his medical records related to the injury giving rise to this claim and can obtain additional copies of those records upon his payment of the required copying fees (see, exhibits attached to defendant's opposition to the motion). Such fees in the amount of $31.25 for 125 pages of documents (i.e., $.25 per page) are reasonable and may be paid from the claimant's inmate trust account as his earnings, meager though they are, accumulate. There is no obligation under the statute (CPLR § 3101 (d) (2)) or court rule which requires the defendant to supply claimant with duplicate copies of claimant's medical records (Tower v Chemical Bank, 140 AD2d 514; Hualde v Otis El. Co., 235 AD2d 269) except for hospital records obtained pursuant to an authorization (see, Hualde v Otis El. Co., supra). Nor is the State required to provide this material for free pursuant to Public Health Law § 18 (2) as the claimant asserts. Claimant's reliance on that statute is misplaced. Based upon the sparsity of the record on the motion the Court is unable to address any of claimant's other allegations regarding the defendant's responses to claimant's demands. The motion to strike the defendant's responses to claimant's discovery demands is, in all respects, denied.

October 16, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 13, 2001;
  2. Affidavit of Yusef Sow sworn to July 16, 2001;
  3. Affirmation of G. Lawrence Dillon dated July 20, 2001 with exhibits;
  4. Affidavit of Yusef Sow sworn to July 26, 2001.