New York State Court of Claims

New York State Court of Claims

BLACKWELL v. THE STATE OF NEW YORK, #2002-011-522, Claim No. 101994, Motion No. M-64516


Synopsis


Claimant's motion to compel pursuant to CPLR 3121 is denied.

Case Information

UID:
2002-011-522
Claimant(s):
JAMES BLACKWELL and MARJORIE S. VOGEL
Claimant short name:
BLACKWELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101994
Motion number(s):
M-64516
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
James Blackwell, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 7, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


In this medical malpractice action, claimants have moved to compel defendant to have Dr.Greg S. Orlando, M.D. perform an " ‘OVER-DUE,' Post/Surgery, Post Therapy and ‘PHYSICAL EXAMINATION' " of claimant, James Blackwell. The demand is made pursuant to CPLR 3121.

The disclosure provision relied on by claimant does not require a party to have a physical examination of another party. CPLR 3121 requires a party whose medical condition is in controversy to submit to a physical examination when another party has determined that such an examination is called for. Insofar as claimant believes that the Department of Correctional Services has unreasonably delayed necessary medical treatment, his remedy is to seek an administrative determination of medical necessity followed by a proceeding under CPLR Article 78, if necessary.

Inasmuch as the provision relied on does not apply to the instant circumstances and as the court is without jurisdiction to entertain a proceeding pursuant to CPLR Article 78, the motion is denied.


March 7, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion to Submit to Physical Examination Pursuant to CPLR 3121(a) filed on January 4, 2002
  2. Affidavit in Support of Marjorie S. Vogel sworn to the 27th day of December, 2001
  3. Affidavit in Support of James Blackwell sworn to the 27th day of December, 2001 with attachments
  4. Affidavit in Opposition of Dennis M. Acton, Esq. sworn to the 9th day of January, 2002
  5. Reply Affidavit of Marjorie S. Vogel sworn to the 13th day of February, 2002