New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2002-028-074, Claim No. 105260, Motion Nos. M-65119, M-65265, M-65439


Claimant's application for an Order to Compel responses is denied and Defendant's request for a protective order is granted to the extent requested.

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-65119, M-65265, M-65439
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Kathleen M. Resnick, Esq. and Michael W. Friedman, Esq.Assistant Attorneys General
Third-party defendant's attorney:

Signature date:
December 23, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motions (M-65119) to strike certain affirmative defenses and (M-65439) to compel disclosure pursuant to CPLR 3124; and Defendant's motion (M-65265) for a protective order pursuant to CPLR §3103(a):
Motion No. M-65119

1) Notice of Motion to "Dismiss Defense" and supporting affidavit of Chester Davidson, filed April 26, 2002 (Davidson Affidavit), and Claimant's letter Memorandum of Law.

2) Affirmation in Opposition of Assistant Attorney General Kathleen M. Resnick,
filed May 31, 2002, (Resnick Opposition), with annexed Exhibit 1.

Motion No. M-65265

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General
Kathleen M. Resnick, filed May 24, 2002, (Resnick Affirmation), with annexed Exhibit A.
2) Affirmation in Opposition[1] of Chester Davidson filed June 3, 2002 (Davidson Opposition).

3) Affirmation in Opposition of Chester Davidson filed August 7, 2002 (Davidson II).[2]

Motion No. M-65439

1) Notice of Motion to "Compel Disclosure of Disclosure Devices" and supporting affidavit of Chester Davidson, filed July 1, 2002 (Davidson Affidavit).

2) Affirmation in Opposition of Assistant Attorney General Michael W. Friedman,

filed July 26, 2002, (Friedman Opposition), with annexed Exhibit A.

3) Reply Affidavit of Chester Davidson filed August 7, 2002 (Davidson Reply).

Filed Papers: Claim, filed November 26, 2001; Answer filed January 2, 2002.

Decision and Order, Davidson v State of New York, Claim No. 105260, Motion Nos. N-64770, M-64892, UID #2002-028-026, Sise, J., filed May 8, 2002.

This is not the parties first appearance before the Court on discovery matters and as occurred in the past one motion turned into three. Accordingly, the Court, sua sponte, adjourned all motions to a single return date in an effort to supply order to this litigation. The facts of the underlying Claim remain straightforward. Claimant, at all times relevant an inmate, alleges the Defendant was negligent when it dispensed the wrong prescription medication to Claimant upon the refill of an existing prescription (Claim, ¶ 7). Claimant further alleges that he was the subject of retaliatory discipline in violation of Correction Law §138 for reporting the aforementioned negligence (Claim, ¶ 8).

A motion to dismiss a defense must be made on the ground that a defense is not stated or that it has no merit (CPLR 3211[b]; Winter v Leigh-Mannell, 51 AD2d 1012). The movant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York 190 Misc 2d 676) and it is error for a court to strike a defense when material issues of fact remain unresolved (Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). Claimant's supporting affidavit is merely argumentative, serving only to highlight his disagreement with the Defendant's positions. At this juncture of the proceedings, the affirmative defenses were properly raised by Defendant in its answer and do not warrant dismissal because they have an appearance of merit (see Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150; see also Becker v Elm Air Conditioning Corp., 143 AD2d 965 [if there is any doubt as to the availability of a defense, it should not be dismissed]; Arquette v State of New York, 190 Misc 2d 676, supra). As to the defense of failure to state a cause of action, this Court concurs that a motion to dismiss same is unnecessary as it is harmless surplusage (see, Pump v Anchor Motor Freight, Inc., 138 AD2d 849). Accordingly, Claimant's motion to strike defenses is denied.

The Court next addresses Defendant's motion for a protective order with respect to the three interrogatories set forth in Claimant's "Supplemental Pleading To Combined Request For Production of Documents and Interrogatories" dated May 10, 2002 (Resnick Affirmation, Exhibit A). The first interrogatory seeks information and documents relating to the "nurse that work the night of March 7, and March 16, 2001" (Id.) including grievances, disciplinary records, inmate grievances and related records. In this Court's view, even were this interrogatory limited in scope, the nurse's file is not otherwise relevant or reasonably calculated to lead to evidence relevant to the issue of the State's purported negligence (see, Jordan v Blue Circle Atl. Inc., 296 AD2d 752). Further support for this conclusion is found in Defendant's outline of the procedures by which prescription medications are filled and dispensed at Greene Correctional Facility (Resnick Affirmation, ¶ 5).

As to the second interrogatory, the Court concurs with Defendant's assessment that this question is more in line with a request for the production of documents. To the extent the Claimant appears to want a copy of the "Health Services Policy Manual" in response to this interrogatory (Davidson II, ¶ 1), the fact said book is available for Claimant's review at the facility or will be provided upon payment of appropriate photocopying fees by Defendant (Resnick Affirmation, ¶ 9) Defendant's request for a protective order is rendered moot.

The third interrogatory contains two questions. The first question requests, in sum and substance, what occurs when a nurse is reported for negligence and the second question requests copies of documents Claimant has filed against "the nurse who worked the night of March 7 and 16, of 2001" (Resnick Affirmation, Exhibit A). Notwithstanding Defendant's suggestion that the first question is vague, the question, albeit inartfully drawn, asks how, if at all, the Defendant investigates complaints about medical care and in the context of this case, alleged medication errors. This question, as articulated by the Court, is reasonably calculated to lead to discoverable material, and may point Claimant in the direction of where, if at all, the alleged error was made.

As to copies of papers Claimant filed with regard to the alleged medication error and the alleged retaliatory discipline (see, Claim ¶8) there is no prohibition that the Court can find which would preclude Claimant from discovering these documents, albeit the better practice would be for Claimant to maintain his own copies. As such, Claimant is entitled to said copies upon payment of the reasonable cost of copying these records.

Next up is Claimant's motion to compel production of documents and responses to requests for admissions.

At issue on this motion are three admissions Claimant seeks relating to his ambulatory health records and entries set forth thereon. Claimant has indicated in the demand that Defendant has already provided "two (2) of claimant's Ambulatory Health Records" (see, "The Modified Notice To Admit Truth of Facts" dated May 10, 2002[3]). As such, question one is already answered. Moreover, whether Defendant is in possession of such records is simply irrelevant to resolution of this claim. As to questions three and four, Defendant is not required to admit to the specific statements or entries contained thereon, for as Defendant correctly notes the documents speak for themselves. Rather, the purpose of the Notice to Admit would be served, as to the at-issue Ambulatory Health Records, by a request to admit the authenticity of said documents. Although it is not the responsibility of either the Court or the opposing party to cull through the requests to identify those few that may be properly answerable (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453), in an effort to move this claim forward, the Court directs the Defendant to admit or deny the authenticity of the Ambulatory Health Records provided by Defendant to Claimant.[4]

Lastly, Claimant seeks records relating to the nurse who worked on March 7, 2001 and March 16, 2001, including her medical license, dispensing license and her Board Certification to Practice (see, "Addendum to Production of Documents" dated May 30, 2002[5]). Defendant responded to this demand by stating that Claimant was not entitled to the first item and the request was unclear, and that the second and third items are not applicable to the nurse (see, Response to Addendum To Production of Documents filed June 10, 2002 and Friedman Affirmation, ¶ 10). Claimant takes issue with these responses, believing in the first instance the latter two items exist and that Public Health Law § 18-a requires production of the documents sought. Public Health Law §18-a by its very terms does not require written disclosure of the information it authorizes to be disclosed to a patient (Public Health Law §18-a[2]). More importantly, from this Court's view, the requested documents are irrelevant to the resolution of the negligence/medical malpractice cause of action and do not, on the facts of this claim, constitute information material and necessary to the prosecution of the claim. Therefore, Claimant is not entitled to production of the documents demanded.

Based upon the foregoing, Claimant's motion to strike affirmative defenses (M-65119) is DENIED; Claimant's motion to compel (M-65439) is DENIED in part and GRANTED in part; and Defendant's motion for a protective order (M-65265) is GRANTED in part and DENIED in part. Any responses required to be made pursuant to this decision and order shall be made within twenty (20) days of the filed date of this decision and order.

December 23, 2002
Albany, New York

Judge of the Court of Claims

[1] Again, Claimant captioned his opposition papers as an "affirmation", which he is not authorized to submit (see, CPLR § 2106); and yet again, he has appended to the "affirmation" a verification duly notarized and as such the Court accepts same for this motion as if it were an affidavit in proper form. Claimant is again directed to familiarize himself with the CPLR and the proper form of papers to be considered by the Court.
[2] This document was neither affirmed nor verified (see footnote 1, supra) and was submitted seven weeks after the original return date of M-65265 and before the Court's Order adjourning all motions to a single return date. Nevertheless, and in the absence of an objection from Defendant, the Court has considered this "affirmation".
[3] Neither party provided the Court with copies of the at-issue demands or responses, preferring instead to quote and paraphrase as needed. The subject demand and response are contained in the Court's file. The subject Ambulatory Health Records are contained in the Court's file as an attachment to the Defendant's "Response To Combined Request For Production of Documents and Interrogatories" filed February 11, 2002.
[4]The Court is aware the release of Claimant's medical record is the subject of a Claim (106233) pending before another Judge of the Court.
[5] See, footnote 3, supra.