JOHNSON v. THE STATE OF NEW YORK, #2002-005-529, Claim No. 100176, Motion Nos.
Claimant's motion for production of certain documents for trial is granted to
the extent noted and decision on the Defendant's motion for preclusion and other
relief is reserved.
EARNEST L. JOHNSON, JR.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
DONALD J. CORBETT, JR.
Earnest L. Johnson, Jr., Pro Se
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
March 25, 2002
See also (multicaptioned
On March 20, 2002, the following papers, numbered 1 to 11, were read on motion
by Claimant for production of certain documents for trial and on motion by
Defendant for preclusion and other relief:
1, 2 Defendant's Notice of Motion, Affirmation and Exhibits Annexed
Opposing Affidavit and Exhibits Annexed
4, 5 Claimant's Notice of Motion and Affidavit Annexed
Defendant's Opposing Affirmation and Exhibits Annexed
Claimant's Reply Affidavit and Exhibits Annexed
Defendant's Reply Affirmation
9, 10, 11 Filed Papers: Claim, Answer, November 13, 2001 letter from the
Principal Court Analyst to the Claimant.
Upon the foregoing papers, the Claimant's motion is granted to the extent noted
and decision is reserved on the Defendant's motion.
This claim is scheduled for trial on April 30, 2002 at Auburn Correctional
Facility. There are two motions pending before me. First, the Defendant seeks
an order of preclusion, dismissal and summary judgment. Second, Claimant has
made a motion seeking the production of certain documents at trial. I will
address the Defendant's dispositive motion first.
The claim herein was filed and served on April 15, 1999, and alleges a claim
for "‘Battery' under theory of battery of the State for the negligent
practice of dentistry by Dr. Spring; Dr. Paxhia." In Claimant's response to
Defendant's demand for disclosure dated May 21, 1999 (Exhibits D and C to the
moving papers respectively), he wrote that he would provide expert witness
disclosure after his examination by an expert.
On February 15, 2002, in response to Defendant's renewed demand for expert
witness disclosure (Exhibit E), Claimant responded:
"There will be no expert witness in the case. Reason: the theory of this case
is ‘Battery' unconsented touching, and do not require a expert in
Theoretically therefore, the claim here can be read as one sounding in battery,
and not one sounding in medical/dental malpractice. Defendant urges dismissal
of the claim on the ground that battery is an intentional tort, and the
applicable statute of limitations for a cause of action for battery is one year
(CPLR 215). It appears that the alleged battery took place with the alleged
unconsented extraction of certain of Claimant's teeth on April 28, 1997 and/or
June 2, 1997, more specifically the abstraction of certain "good" teeth without
Defendant urges that since the claim here was commenced by service and filing
on April 15, 1999, such commencement was nearly two years after the alleged
battery took place, and thus it was untimely commenced and should be dismissed.
In furtherance of Defendant's argument, it appears that the statute of
limitations defense, preserved in the Answer as the Sixth Affirmative Defense,
is not implicated by the particularity provisions of Court of Claims Act
§11(c) (also see, §12 and Fahey v County of Ontario,
44 NY2d 934).
The question of whether the cause of action sounds in battery or
negligence/malpractice is significant, because the underlying statutes of
limitations differ. Reliance upon Claimant's nomenclature is not binding upon
the Court, and fundamental fairness requires a review of the pleadings to
ascertain precisely that which Claimant actually alleges. As the Hon. Terry
Jane Ruderman observed in Funderbird-Day v State of New York, Claim No.
89268, filed August 12, 1998, an action to recover damages on the basis of lack
of informed consent historically was viewed as the common-law tort of assault
and battery, but has evolved into modern theory codified in the Public Health
Law §2805-d, entitled Limitation of medical, dental or podiatric
malpractice action based on lack of informed consent, and further noted that
lack of informed consent has also been held applicable in cases where the doctor
went beyond the scope of the patient's consent and performed a more extensive
More recently, the Appellate Division First Department, in Messina v
Matarasso, 284 AD2d 32, addressed the precise question before me, to wit,
the negligent performance of a medical procedure, allegedly conducted without
plaintiff's authorization or informed consent, sounds in battery, subject to a
one-year Statute of Limitations (CPLR 215 ), or medical malpractice, subject
to a 2½-year Statute of Limitations (CPLR 214-a). Concededly, the action
was not commenced within one year of its accrual, although it was commenced
within the Statute of Limitations applicable in the circumstances presented to a
medical malpractice claim.
The Messina Court affirmed dismissal of the action to recover damages for
the negligent performance of a medical procedure, allegedly conducted without
plaintiff's authorization or informed consent, as it sounded in battery and was
subject to the one-year statute of limitations (CPLR 215 ), and observed
The modern approach, however, views the failure to obtain the informed consent
of a patient as "a form of medical malpractice based on negligence." (citations
omitted). . . . when the doctor obtains consent to a certain procedure and an
undisclosed complication arises, what occurs is not necessarily an intentional
deviation from the consent given but rather a deviation from the duty to
disclose the information that a competent physician would have provided. On the
other hand, when a patient agrees to treatment for one condition and is
subjected to a procedure related to a completely different condition, there can
be no question but that the deviation from the consent given was intentional. .
. . Under a negligence theory, a plaintiff must prove a failure to disclose a
reasonably foreseeable risk, that a reasonable person, so informed, would have
opted against the procedure, an actual injury and that the procedure was the
proximate cause of the injury. . . . To establish a battery, however, it need
only be shown that the defendant made bodily contact with the plaintiff and that
the contact was either offensive in nature. . . . ‘where a procedure is
completely unauthorized . . . must be distinguished from cases where a patient
consents to a procedure without being fully aware of the risks and consequences
involved' (citations omitted).
On the record before me, I cannot ascertain the precise nature of the purported
consent which was given, and thus it is not clear whether the extraction[s] in
question were treatment beyond the scope of the consent, or a procedure
performed with no consent at all. Accordingly, I reserve decision on this
motion until testimony is taken and documents are entered into evidence.
With respect to the Claimant's motion seeking the production of documents for
trial, in his affirmation in opposition, the Assistant Attorney General
representing the Defendant affirmed the following:
Paragraph 6. By notice of motion dated February 26, 2002, claimant seeks an
order directing production of documents for his use at trial. This motion was
apparently brought on by the invitation and instruction of a clerk of the Court
of Claims (Exhibit C), which in and of itself is highly unusual, if not
improper. It is not the appropriate function of the court clerk to solicit
motions from litigants, be they proceeding pro se, or otherwise.
Counsel, while sharing with the Court his personal opinion of the appropriate
functions and duties of a court clerk, failed to read or comprehend the letter
from the Principal Court Analyst dated November 13, 2001 (Paper #11). I will
parse the sentence for purposes of edification: "If you desire any witnesses or
documents for the trial, Judge Corbett has directed that any application be made
by motion. . . ." Lest it be misapprehended, I authored and directed that the
letter be sent. Furthermore, I have utilized essentially identical letters for
each and every pro se inmate trial which I have conducted for perhaps ten
years. Counsel's affirmation under oath that the letter was highly unusual, if
not improper, bespeaks an aura of arrogance and condescension. I encourage and
respect forceful advocacy on behalf of one's client, but this strays from that
role and falls outside the usual standards of professionalism and courtesy that
I have come to expect from the Department of Law.
Counsel's further protestations that Claimant had already obtained the
sought-after documents ignores the obvious. This motion, and others like it,
seeks the production of documents for introduction into evidence at trial, not
for pre-trial discovery purposes. If I find that the sought-after documents
appear relevant and material to the claim, and, if the originals remain in the
possession and control of the Defendant, then having the Defendant produce the
copies eliminates any question as to the authenticity of such documents.
Counsel's suggestion that the "proper approach" is for Claimant to readily
obtain copies of his pleadings from the court clerk, and records from the State
through a freedom of information act request, rather than making the instant
motion, does not resolve the problem. In the alternative, I could order the
Defendant to produce the custodian of the records at trial, along with the
original documents so that they can be offered into evidence. This alternative
would not appear to be an efficient use of the court's time or of Defendant's
employees, and is one that I have not generally employed in the past, although
it exists as an option for the Defendant here.
That being said, I will now address the Claimant's motion for the production of
documents. Defendant's opposition is limited to the procedural objections noted
above, and does not address the substance of the requests.
Accordingly, with respect to the interrogatories answered by Dr. Spring, dated
March 7, 2000, and the interrogatories answered by Dr. Paxhia, dated March 8,
2000, the Defendant is directed to have available at trial one set of
interrogatories answered by Dr. Spring and a set answered by Dr. Paxhia, in the
event that Claimant's copies thereof are not available. Furthermore, the
Defendant is directed to have available at trial one complete set of Department
of Correctional Services (DOCS) Dental Clinical records and all dental x-rays in
the custody and possession of DOCS relating to Claimant. With respect to the
University of Rochester Strong Memorial Hospital Ambulatory Dental Notes,
#188-15-93, dated November 24, 1999, Referral # 99078840-40, if copies of such
notes and referral are in the possession of the Defendant as the custodian of
all of Claimant's medical/dental records while he is an inmate, it is directed
to have copies thereof available at the trial herein.
Since Claimant is not an attorney, he cannot issue subpoenas on his own; I will
issue the subpoena herein (CPLR 2303), directing Strong Memorial Hospital of the
University of Rochester to produce said notes and referral. The subpoena will
be forwarded under separate cover to the Claimant, with a copy to the Defendant.
CPLR 2303 says that subpoenas shall be served in the same manner as a summons.
However, in the Court of Claims, the functional equivalent of the summons and
complaint, to wit, the claim, must be served personally or by certified mail,
return receipt requested (Court of Claims Act §11[a]) in order to obtain
personal jurisdiction over the State. Since it is inherently obvious that an
inmate is limited in his ability to accomplish personal service, I will direct
service of such subpoena by the same means available to all claimants to serve
claims in this Court. Claimant shall serve the subpoena by certified mail,
return receipt requested.
Thus, Claimant's motion is granted to the extent noted, and, where I have
directed the Defendant to have copies of documents available at the trial, or at
its option in lieu thereof, the Defendant may have the custodian of the record
and the original records available at the trial herein.
Accordingly, Claimant's motion is granted to the extent noted, and decision on
the Defendant's motion is reserved.
March 25, 2002
HON. DONALD J. CORBETT, JR.
Judge of the Court of