New York State Court of Claims

New York State Court of Claims

RIOS v. THE STATE OF NEW YORK, #2002-005-530, Claim No. 98674, Motion No. M-64837


Synopsis


Claimant's motion for the production of certain witnesses and documents at the trial herein is denied in most respects, and granted in part, with no subpoenas to be issued.

Case Information

UID:
2002-005-530
Claimant(s):
MR. ORLANDO RIOS
Claimant short name:
RIOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98674
Motion number(s):
M-64837
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Orlando Rios,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 1, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On March 26, 2002, the following papers, numbered 1 to 17, were read on motion by Claimant for the production of certain witnesses and documents for the trial herein:

1 - 15 Notice of Motion, Affidavits in Support and Proposed Subpoenas
  1. Opposing Affirmation and Exhibits Annexed
  2. Filed Papers: Claim
Upon the foregoing papers, this motion is denied in most respects, and granted in part.

In this motion, made pursuant to my directive in the November 13, 2001, letter from the Chief Clerk's office advising Claimant of the scheduling of the trial of this claim, Claimant seeks the appearance of certain individuals and the provision of certain documents at the trial. He has submitted a notice of motion, 14 affidavits in support and 15 proposed subpoenas.


In a decision and order in Motion Nos. M-64704 and CM-64794 dated March 13, 2002, I granted that part of Defendant's cross-motion that sought summary judgment as to medical malpractice, but denied the same with respect to allegations sounding in ministerial negligence, negligence and deliberate indifference relating to the lack and/or delay in providing medical care and treatment, including alleged violations of the Defendant's own protocols, for which expert testimony would not appear to be required and could be established by other proof.

Keeping those parameters in mind, I will now consider each of Claimant's requests. Claimant has supplied separate supporting affidavits as to each of the individuals he desires to testify on his behalf. With respect to F.R. Davey, M.D. (Pathologist) at the SUNY Health Science Center at Syracuse, whose testimony is sought for the purposes of determining whether certain tests were performed prior to surgery; Nurse Kim, R.N. at the SUNY Health Science Center at Syracuse, and her alleged notes regarding Claimant's appearance and her observations as to her conclusion that Claimant did not have appendicitis; Dr., Chaudry, M.D. (anesthesiologist) at the SUNY Health Science Center at Syracuse, to set forth what Claimant was diagnosed for prior to surgery, and Elizabeth C. Squiers, M.D. (pathologist) at the SUNY Health Science Center at Syracuse, allegedly the attending physician and the individual who performed the operation, all those requests for the issuance of subpoenas are denied. Since medical malpractice relating to the diagnosis and/or treatment including the surgery has been dismissed, the purported testimony of these individuals is not material or relevant to the remaining theories of Defendant's liability. These applications are denied in their entirety.


With respect to the request for Correction Officer J. C. Bovette, to purportedly establish that on July 10, 1997, he escorted Claimant to the SUNY Health Science Center at Syracuse and witnessed the consent to perform the surgery, the request is denied as that information is not material to any of the remaining theories of Defendant's liability. Additionally, Defendant, upon information and belief relying upon information provided by the liaison officer at Auburn Correctional Facility (Auburn), advises that there is no record of a correction officer at Auburn by that name.


With respect to the request for a subpoena for the testimony of Nurse Melissa Trendek, identified as a registered nurse at Auburn Correctional Facility, Defendant, upon information and belief relying upon information provided by the liaison officer at Auburn Correctional Facility, advises that Nurse Trendek is no longer employed by the Department of Correctional Services. Accordingly, she apparently is no longer under the control of the Defendant, certainly not at Auburn Correctional Facility the place where the proposed subpoena is addressed, and, in any event, her purported testimony appears to address facts that should either be contained in the Claimant's ambulatory health records, and/or can be addressed directly by Claimant. Furthermore, Claimant's summary of her prospective testimony does not demonstrate how the same relates to the remaining theories of liability. The request for a subpoena for her is denied.


With respect to the requests for certified copies of medical records from the Great Meadow Correctional Facility, Coxsackie Correctional Facility Regional Medical Unit, Auburn Correctional Facility and the Walsh Medical Center, the Defendant has agreed to provide a copy of Claimant's entire ambulatory health record at trial, thus eliminating the need for subpoenas of the same. Thus Claimant's motion is denied with respect to those facilities as subpoenas are unnecessary.


Claimant also seeks a variety of specifically enumerated medical documents pertaining to his care at the Albany Medical Center. This facility is identified by Defendant as a private hospital, and as such Defendant has taken no position as to this request because Albany Medical Center is not a party herein. This request is denied because no liability can attach to the Defendant herein for actions occurring at an outside, private medical facility or by an independent physician (Rivers v State of New York, 159 AD2d 788, appeal denied 76 NY2d 701).


Claimant also seeks a variety of medical records from the SUNY Health Science Center at Syracuse (described by Defendant as the SUNY Upstate Health Science Center). The Defendant has agreed to have available at the trial a copy of the Claimant's entire record, obviating the necessity of a subpoena. Defendant reserves the right to raise objections to the introduction of such materials into evidence, asserting that such records are irrelevant to the surviving theories of liability. Defendant's position here is well- reasoned, and the admissibility of such documents will abide the trial.


Claimant seeks a subpoena to compel the testimony of one C. Finchan, R.N., identified as a registered nurse at the Auburn Correctional Facility. Claimant anticipates that Nurse Finchan will be able to establish that on June 26, 1997, "after having received claimant in the medical unit for emergency care, she queried claimant and scheduled claimant for an appointment with the facility P.A. (presumably, physician's assistant), later that day, she again saw claimant, contacted Dr. Graceffo, and had claimant admitted into the facility infirmary to await examination by the P.A. . . . she again saw claimant on the 27th day of June, 1997, as claimant was being released from the infirmary per Dr. Graceffo." All factual assertions for which Nurse Finchan's testimony is sought should be readily available from Claimant's ambulatory health records and from Claimant's direct testimony, and, in any event, Claimant's summary of her prospective testimony does not demonstrate how the same relates to the remaining theories of liability. The request for a subpoena for her is denied.


With regard to the prospective testimony of Dr. Anthony Graceffo, Claimant urges that his testimony will establish certain facts relating to events at the Auburn medical unit on July 8 and 9, 1997, which seemingly can be established by the medical record, but also inferentially apply to the remaining theories of liability, perhaps including the purported delay in rendering medical treatment and violation of certain of the Defendant's own protocols. Defendant objects to this prospective testimony on the grounds that using such testimony merely to ratify that which is already in the ambulatory health records would be cumulative and redundant, and that to the extent that it might be utilized to attempt to establish medical malpractice, such would be moot because that cause of action has been dismissed. It is not clear whether Dr. Graceffo's prospective testimony may serve to clarify, albeit not ratify, certain ambulatory health records, and other protocols. Since it is my understanding that Dr. Graceffo is currently an employee of the Defendant's at the Auburn Correctional Facility, I direct the Defendant to have him available to testify at the trial herein without the necessity of a subpoena, and the Claimant's motion is granted to that limited extent.


Finally, with respect to Claimant's request for the production of certified copies of (a) "A" Block Log Book Entries for June 25, 1997; (b) Hospital Log Book Entries for June 15, 1997; (c) Main Yard Log Book Entries for June 25, 1997; (d) Log Book Entries from Chart Office documenting outside hospital trips, medical trips and the names of the Transportation Officer between July 9, 1997 through August 16, 1998, and (e) Any and all Log Book Entries documenting emergency sick call request, the reason for the request and the treatment rendered. Defendant objects to such requests as being irrelevant and immaterial to any claim of negligence. It also objects to the application as being improper, in the nature of discovery and not the proper subject of a subpoena application on the eve of trial. First with respect to item (d), I find the same to be totally irrelevant to the remaining theories of liability, and since medical malpractice has been dismissed and treatment at outside facilities is irrelevant to the remaining theories of liability (Rivers v State of New York, 159 AD2d 788, appeal denied 76 NY2d 701), this request is denied. As to item (e), I deny the request as it is too broad, undated and unspecific.


However, items (a), (b) and (c), are date specific, and to the extent that such entries relate to Claimant, I direct the Defendant to have available at the trial certified copies of such log book entries, with the redaction of any entry not related to Claimant. This does not appear to be a cumbersome request, and while the relevance thereof to the remaining theories of liability is somewhat unclear, I do not find it to be discovery, as the materials will only be made available at trial, and not beforehand. I further do not find this to be an application on the eve of trial as it was made pursuant to my November 13, 2001 directive, and I do not find it, in and of itself, to be an "improper" application.


Defendant's protestations of the impropriety of seeking subpoenas for the production of documents or securing the testimony of relevant and material witnesses are unpersuasive. Effective September 10, 1973, the Civil Rights Law was amended to provide, inter alia, that "A sentence of imprisonment in a state correctional institution * * * shall not be deemed to suspend the right or capacity of any person so sentenced to commence and prosecute an action or proceeding in any court within this state" (Civil Rights Law, §79, subd 2 [as amd by L 1973, ch 687, §1]). Accordingly, in the aftermath of the Attica uprising of 1971, the legislature saw fit to permit incarcerated individuals the right to commence actions. Notably that included the Court of Claims, and it subsumes the right to have a fair trial, including the presentment of evidence on an inmate's behalf. It would be a hollow right if litigants, particularly incarcerated pro se litigants, were not afforded realistic opportunities to secure the appearance of relevant and material witnesses and documents in an admissible-form, to wit, certified copies of originals, generally documents in the possession and control of the Defendant. Requiring pro se inmates to request such witnesses and documents well in advance of their trials, with the added requirement of providing an explanation of the relevance, necessity, and purpose of each such witness and document, not only provides the Defendant with a glimpse of Claimant's case, avoids adjournment requests, and facilitates the smooth functioning of the trial calendar and the administration of justice, but it fulfills the legislature's intent in permitting such trials. The procedure which I have put in place is hardly improper or prejudicial, and I would urge that Defendant's repeated forays into this arena be tested by appellate review, rather than the regurgitation of stale arguments to the trial court.


Regardless, based upon the above, it is unnecessary for subpoenas to be issued with respect to the items which the Defendant has agreed to provide, and I find that subpoenas are not necessary as to Dr. Graceffo or the log book items specified above. Accordingly, the motion is denied in all respects, except as to Dr. Graceffo and the specific log book entries related to Claimant as noted above, as to which the motion is granted in part.


April 1, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims