New York State Court of Claims

New York State Court of Claims

MOOLENARR v. THE STATE OF NEW YORK, #2002-019-546, Claim No. 102780, Motion Nos. M-62813, M-65055


Claimant's motions to compel discovery are 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):
M-62813, M-65055
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 3, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This Decision & Order relates to two separate motions. First, in Motion No. M-65055, Claimant, an inmate appearing pro se, moves for an order to compel discovery pursuant to CPLR 3124 and 3126. The State of New York (hereinafter "State") opposes the motion. Second, Motion No. M-62813 relates to a prior Decision & Order filed March 19, 2001 issued by the Hon. Philip J. Patti in relation to an earlier motion to compel by Claimant.

The Court has considered the following papers in connection with these motions:
  1. Claim, filed July 20, 2000.
  2. DECISION AND ORDER, Patti, J., Claim No. 102780, Motion No. M-62813, filed March 19, 2001.
  3. Affirmation of James E. Shoemaker, AAG, dated April 10, 2001, and filed April 13, 2001, in response to Judge Patti's Decision and Order filed March 19, 2001.
  4. Notice of Motion No. M-65055, dated April 5, 2002, and filed April 10, 2002.
  5. Affidavit of Brian Moolenaar, in support of motion, sworn to April 5, 2002.
  6. Letter from Brian Moolenaar to Court, dated April 28, 2002, and received by the Court on May 1, 2002.
  7. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated May 29, 2002, with attached exhibits.
The underlying Claim arises from alleged incidents of medical malpractice and medical negligence committed by the State against Claimant during his incarceration at Southport Correctional Facility (hereinafter "Southport").

1. Motion No. M-65055

Claimant moves to compel the State to respond to his Demand for Discovery filed February 22, 2002 which consisted of numerous "interrogatories" and/or written questions under CPLR 3108.[1] These "interrogatories" and/or written questions are addressed to both State employees and non-State employees including the following:
Nurse Sabrina Vonhagen at Southport
John Alves, M.D., at Southport
Dr. Vonhagen at Southport
Nurse Albright at Coxsackie Correctional Facility
IGRC representative Schwebler at Coxsackie Correctional Facility
Chief Medical Officer of New York State Department of Correctional Services in Albany, NY
J. Rosenfield at Green [sic] Correctional Facility
Dr. Snider at Clinton Correctional Facility
John Rodgers, M.D., at Coxsackie Correctional Facility
T. Jennings, M.D., at Albany Medical Center

CPLR Rule 3108 provides "[a] deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state." (Emphasis added). Claimant's motion must be denied. The statute only authorizes written questions pursuant to stipulation or when the testimony is being taken out of state. Here, there is no stipulation and the testimony is not being taken out of state. In fact, this Court previously informed Claimant that CPLR 3108 was available only upon consent of the State. (Court's letters dated January 3, 2002 and February 5, 2002). The State was within its rights to refuse consent to the use of CPLR 3108 and, as such, this Court cannot compel such compliance under the auspices of CPLR 3124. Further, in order to warrant sanctions for nondisclosure under CPLR 3126, Claimant is required to establish the State's failure to produce discovery documents was "willful, contumacious or in bad faith [citations omitted]". (Fitterer v Riedlinger's Towing Serv., 271 AD2d 403, 404). Such is not the case here. In view of the foregoing, the Court finds that the requisite showing has not been made under either CPLR 3124 or 3126. Consequently, Claimant's motion must be denied in its entirety.

2. Motion No. M-62813

This motion relates to one of Claimant's prior motions to compel and the Decision & Order issued by the Hon. Philip J. Patti filed March 19, 2001 and subsequently transferred to this Court. Said motion was denied in part and granted in part with Judge Patti ordering:
[the] Defendant to produce the personnel records of Dr. Alves and Nurse VonHagn for in camera inspection within 30 days of the date of this order, but only to the extent that the records relate to any findings of misconduct or to any discipline. Thereafter, I will determine whether the records should be produced to Claimant.

(Moolenaar v State of New York, Ct Cl, March 19, 2001, Patti, J., Claim No. 102780, Motion No. M-62813, p 2).

In accordance with said Decision & Order, the State filed the Affirmation of James E. Shoemaker, AAG, with the Clerk of the Court on April 13, 2001.[2] Mr. Shoemaker avers that "[t]he personal history folders of John Alves, M.D. and Sabrina VonHagn, R.N., contain no record of a citation of misconduct or any penalties, suspensions or fines imposed for such conduct. Further, there is nothing in either employees' folder of a record of negligence or malpractice or a record of results of such actions in either folder." (Affirmation of James E. Shoemaker filed April 13, 2001, ¶ 6). Consequently, Claimant's motion to compel, Motion No. M-62813, regarding the personnel records of Dr. Alves and Nurse VonHagn is DENIED.

Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion to compel discovery, Motion No. M-65055, is DENIED; and

It is FURTHER ORDERED, that Claimant's motion to compel, Motion No. M-62813, with respect to the personnel records of Dr. Alves and Nurse VonHagn, is DENIED.

July 3, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Claimant did not attach said demand to his motion papers. The State refers to a demand served on February 4, 2002 and attaches the same as Exhibit A to its opposing papers. The Court file contains two versions of what appears to be essentially similar demands dated January 25, 2002 and February 22, 2002. The Court will refer herein solely to the Demand attached to the State's papers as Exhibit A.
[2]The delay in issuing this final Decision & Order is attributable, in part, to the transfer of the file between chambers. Despite this delay in the issuance of this Decision & Order, however, the State served its Affirmation upon Claimant in a timely manner on April 10, 2001 according to the filed Affidavit of Service.