New York State Court of Claims

New York State Court of Claims

GRIFFITH v. THE STATE OF NEW YORK, #2001-015-207, Claim No. 102496, Motion No. M-64071


In response to the defendant's motion to compel a further response to state's discovery demand in medial malpractice action claimant was directed to supply an appropriate response in conformity with CPLR 3101 (d) (1) within 45 days.

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:
Dexter Griffith, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown III, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 11, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for an order compelling a further response to the defendant's demand pursuant to Civil Practice Law and Rules (CPLR) § 3101 (d) (1) regarding medical expert(s), if any, which claimant intends to offer at trial and a statement in reasonable detail of the subject matter of the testimony to be offered by such expert(s) is granted. Claimant shall serve a response to the demand upon the Attorney General's office by regular mail within 45 days of service upon him of a copy of this decision and order with notice of its filing. A copy of the response shall also be filed with the Clerk of the Court. Defendant's motion is denied in all other respects. This claim is alleged to have accrued on June 5, 1999 during claimant's incarceration at Franklin Correctional Facility and seeks damages arising in medical negligence /malpractice due to the alleged failure of DOCS' medical personnel to properly diagnose and/or treat claimant for what claimant describes as a ruptured ulcer and anemia. The claim was filed on May 19, 2000.

Issue was joined by the service of the defendant's answer on June 20, 2000. The answer was accompanied by a written demand for disclosure relating to claimant's medical expert(s) pursuant to CPLR § 3101 (d) (1). Claimant, proceeding in this claim on a pro se basis, neither responded to the expert demand nor moved to vacate.

A telephone conference was held on June 26, 2001 with defense counsel and the claimant to set a date for trial. Defense counsel opposed the scheduling of trial on the ground that claimant had not responded to the defendant's expert demands. The necessity of filing an appropriate response was discussed with claimant who requested a two week adjournment to retain his expert(s) and to disclose in reasonable detail the subject matter of their expected testimony.

On July 17, 2001 claimant submitted a letter to the Assistant Attorney General assigned to this claim containing the following information:
Medical Expert Witness List

Nurse Janet Collin (Franklin Correctional Facility)

Admitting Physician Sasseville, Rachel (Alice Hyde Memorial Hospital)

Attending Physician Sasseville, Rachel (Alice Hyde Memorial Hospital)

Dr. Shah (Alice Hyde Memorial Hospital) Shah, Raji V. Surge [sic]

Dr. Whalen Timothy (Alice Hyde Memorial Hospital)
Claimant did not set forth the qualifications of these individuals nor did he provide any detail regarding the subject matter of their anticipated testimony, the substance of the facts and opinions on which each expert is expected to testify and a summary of the grounds for each expert's opinion as required by CPLR § 3101 (d) (1) (see, Chapman v State of New York, 189 AD2d 1075).

Claimant merely indicated in his letter that he was "phoning and hoping to call" these identified individuals as his expert medical witnesses. The inadequacy of claimant's response was discussed at a further teleconference held on July 19, 2001 at which time defense counsel indicated that unless an appropriate response to the expert demand was provided within two weeks he would make a motion to compel and/or preclude. Claimant submitted no further response to the demand and this motion ensued. Claimant did not oppose the motion.

CPLR § 3101 (d) (1) (i) provides:
1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party , in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph.
Claimant's letter of July 17, 2001 does not satisfy his obligation to disclose under CPLR § 3101 (d)(1). In fact, it appears to this Court that claimant's response is "wholly inadequate and, in fact, 'so general and nonspecific that the [State] has not been enlightened to any appreciable degree about the content of [the] expert's anticipated testimony' (Saar v Brown & Odabashian, 139 Misc 2d 328, 334)" (Chapman v State of New York, 189 AD2d 1075).

Accordingly, claimant is directed to serve and file a further response within 45 days of service of a copy of this decision and order correcting the identified deficiencies of his July 17, 2001 response (see, Chapman v State of New York, 227 AD2d 867; see also Curatola v Staten Is. Med. Group, 243 AD2d 673).

December 11, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Failure to comply with discovery and inspection dated September, 2001;
  2. Affirmation of Frederick H. McGown, III dated September 12, 2001.