New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK , #2002-028-004, Claim No. 103396, Motion Nos. M-64141, M64201, M-64323


Synopsis


Claimant's motions to compel discovery, for the appointment of a referee to supervise disclosure and for summary judgment are denied. The Court directed the Defendant to respond to the motion to compel as if it were a proper discovery demand. In doing so, the Court placed limitations on the material sought.

Case Information

UID:
2002-028-004
Claimant(s):
PRESTON SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103396
Motion number(s):
M-64141, M64201, M-64323
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
PRESTON SMITH, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 18, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motions to compel disclosure (M-64141); to have a referee appointed (M-64201) and for summary judgment and sanctions (M-64323):


M-64141
:

  1. Notice of Motion and Supporting Affidavit of Preston Smith, sworn to September 20, 2001, (Smith Affidavit);
  1. Affirmation in Opposition of AAG Paul F. Cagino, affirmed October 10, 2001, (Cagino Affirmation), with annexed Exhibit A;

M-64201
:

  1. Notice of Motion and Supporting Affidavit of Preston Smith, sworn to October 12, 2001, (Smith I);
  1. Affirmation in Opposition of AAG Paul F. Cagino, affirmed October 22, 2001, (Cagino I);

M-64323
:

  1. Notice of Motion and Supporting Affidavit of Preston Smith, sworn to October 29, 2001, (Smith II);
  1. Affirmation in Opposition of AAG Paul F. Cagino, affirmed November 7, 2001, (Cagino II)

Filed Papers: Verified Claim, filed March 26, 2001; Verified Answer filed May 11, 2001; Decision and Order filed June 21, 2001; and Decision and Order filed August 15, 2001. These motions arise from the pro se Claimant's attempts to proceed in accordance with the Court's two prior decisions regarding disclosure. As the Court had previously stated, Claimant was putting the cart before the horse by moving for disclosure without the service of a demand for same upon defendant. Claimant does so again in M-64141, by seeking an order compelling disclosure, inter alia, of a litany of medical records, correspondence, and memorandums " in toto" (Smith Affidavit, ¶1), without indicating that a demand for same has been made. In opposition, the Defendant asserts the motion is improper and premature as there is no discovery issue before the Court (Cagino Affirmation, ¶3). Defendant further asserts the "demand" is overboard, a fishing expedition, and to the extent Claimant seeks medical records, Claimant has on two separate occasions viewed and obtained copies of his medical records (Cagino Affirmation, ¶ 8 and Exhibit A).

At this juncture, the Court, to facilitate moving this claim to trial, directs that the Defendant accept the "Notice of Motion" as a proper discovery demand. In doing so, the Court limits its scope to the specific injuries alleged in the claim and to the period January 5, 2000 through December 31, 2000, dates the Court has culled from Claimant's submissions. The materials to be produced, if any, shall exclude copies of the medical records which claimant has viewed and previously obtained. The Court reasonably expects that this discovery demand, as converted and limited by the Court, may yield written material in addition to the medical records previously obtained. Defendant's response shall be filed and served within forty-five days of the date this decision is filed.

Turning to Claimant's request for a referee, the Court previously denied such a request (Decision and Order filed August 15, 2001) and Claimant in this application again offers the Court no reason whatsoever to support such a request. Accordingly, the Court denies this request.

Lastly, Claimant has moved for summary judgment and sanctions for non-disclosure. Defendant aptly notes that Claimant's Affidavit in support (Smith II) is generally more akin to a Reply Affidavit relating to the issues of disclosure and the appointment of a referee. To the extent the Court accepts same as a summary judgment motion, it must be denied for two reasons. The first reason is Claimant is still seeking disclosure in order to establish his Claim and in the Court's view, summary judgment is inconsistent with the need for additional discovery. The second reason is that to succeed in a medical malpractice action, a claimant must demonstrate, typically via expert medical opinion evidence, that a physician deviated or departed from accepted practice and that such departure was a proximate cause of injury or damage (see, e.g., Stuart v Ellis Hosp., 198 AD2d 559, 560-561; Amsler v Verrilli, 119 AD2d 786, 787; see also, Fiore v Galang, 64 NY2d 999, 1000-1001). The Court alerted Claimant to the need for an expert in its earlier decision. As the proponent of a summary judgment motion, Claimant is required to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case and such showing must be made by producing evidentiary proof in admissible form (see, Tortorello v Carlin, 260 AD2D 201) As such, Claimant's attempt to provide medical "proof" in support of his claim for medical malpractice through his own affidavit (Smith II, ¶¶ 4-6) is inadequate to establish Claimant's entitlement to summary judgment.

For the foregoing reasons, Claimant's motions to compel disclosure (M-64141); to have a referee appointed (M-64201) and for summary judgment and sanctions (M-64323) are denied in their entirety.



January 18, 2001
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims