New York State Court of Claims

New York State Court of Claims

MACKENZIE v. THE STATE OF NEW YORK, #2002-029-234, Claim No. 104536, Motion No. M-65727


Claimant, for the second time, moves to compel compliance with CPLR 3120. This motion is exactly the same as claimant's prior motion and is denied for the same reasons as that prior motion. Court warns claimant that if he makes another similar motion on any of his cases, the Court will consider such to be frivolous conduct as defined in 22 NYCRR and the Court will conduct a hearing to determine whether costs or sanctions should be imposed.

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):
Cross-motion number(s):

Claimant's attorney:
Edward MacKenzie, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 24, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, pro se, for the fourth time moves pursuant to CPLR 3124 for an order directing defendant to respond. This time claimant seeks to compel the defendant to make certain documents in defendant's possession available for inspection, copying and/or photocopying, as well as, to compel defendant to provide "proper" responses to claimant's April 19, 2002 request for interrogatories. He also seeks an order pursuant to CPLR § 3126 imposing sanctions and to have the Court take appropriate action regarding asserted Penal Law violations committed by the defendant.

The claim alleges negligence and medical malpractice on the part of the State in refusing to provide claimant with medical treatment for Hepatitis C. Claimant asserts he was informed that he had the Hepatitis C Virus on June 6, 2000 at Shawangunk Correctional Facility but has not received any medical treatment for the disease.

Claimant asserts for the second time[1] that the State has violated CPLR 3120 by "telling claimant to get the documents somewhere else" (MacKenzie Affidavit in Support, Paragraph 4). As this Court stated in the prior decision and order, CPLR 3120 (a) provides in pertinent part:

1. After commencement of an action, any party may serve on any other party notice:

(i) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party served.

Further, CPLR 3120 (a) (2) provides that the notice specify the time and place and manner of the inspection.

Claimant's April 19, 2002 Demand for Production required the State to make available "for inspection, copying or photocopying" the documents requested at Shawangunk Correctional Facility, within 30 days of receipt of the Demand (see Exhibit A attached to Claimant's Motion).

The State's response to the Demand states that the directives and policy and procedures claimant requested are available at the Shawangunk Correctional Facility library. The State's response further states that the defendant already provided claimant with his medical records "to January, 2002" and directed claimant to contact the facility Medical Department to review his most recent records (see Exhibit B attached to Claimant's Motion). The Court finds: (1) nothing improper about the State's response; (2) that it complies with CPLR 3120 (a); and (3) complies with claimant's demand. The requested documents are available for inspection by claimant at the Shawangunk Correctional Facility Library and health facility and he is free to copy or photocopy the documents he desires. Claimant's Demand required that the documents be made available at the facility and the State has responded that the documents are available at the facility library and medical department. Nothing in the law requires delivery to claimant's cell.

The Court has now advised claimant on two separate occasions that defendant's response stating that the documents are available for review at the correctional facility where claimant is housed is proper and is in compliance with CPLR 3120.

Claimant is advised that if he files any further motion in any pending claim asserting non-compliance with CPLR 3120 for the reason as asserted herein and in Motion No. M-65679, the Court will consider such motion to be "frivolous conduct" as defined in 22 NYCRR §130-1.1 (c) and will sua sponte conduct a hearing to determine whether costs or sanctions should be imposed upon claimant for such conduct as set forth in 22 NYCRR § 130-1.1(d).

Claimant also asserts that on April 19, 2002 he served a demand for interrogatories[2] upon the defendant; defendant responded on May 8, 2002 (Exhibit E attached to Claimant's Motion) and that claimant finds the answers to interrogatories 4, 10, 12, 17, 18 and 19 unacceptable. Claimant asserts that based on the State's answer to interrogatories 1, 2, and 3 that the answer to interrogatory 4 constitutes either perjury or offering a false statement. Claimant asserts that the State's responses to interrogatories 10 and 12 constitute the same offenses. He further asserts that the State's response to interrogatory 19, that the question cannot be answered, is unacceptable. Claimant offers no explanation for his objection to the responses to interrogatories 17 and 18.

In response to interrogatory 4, Dr. Forte states his belief that he followed the Hepatitis C guidelines and that the guidelines are to be used in conjunction with his medical judgment (see Exhibit E attached to Claimant's Motion). Claimant has offered only his own layman's conclusion that this statement is false. He has offered no expert opinion from a qualified medical professional that the statement is untrue or medically unsound. Claimant's disagreement with defendant's response does not make the response either perjurious or improper (see, MacKenzie v State of New York, Claim No. 104536, Motion No. M-65095, filed July 11, 2002, Mignano, J.). As the Court has also advised claimant previously, he may dispute this response at trial. The Court does not find this response improper or patently false.

In response to interrogatory 10, Dr. Forte stated that the guidelines provide suggested time periods, not mandatory time periods. As the State's counsel asserts in paragraph 7 of her Affirmation in Opposition to claimant's motion, "[t]he guidelines state two particular time periods for "LFT's": 6-12 months and 8-12 weeks. If this is what was meant by the claimant to be "specific", then the defendant changes its answer to "yes". If "specific" was meant to be an absolute, then the defendant stays with its original answer. The defendant believes that the claimant's use of the word specific is altering the meaning and interpretation of the guidelines".

As claimant has repeatedly pointed out to the Court, he is a layman, not an attorney. As such, he may believe his questions are straightforward and capable of only one interpretation. However, I find that claimant's interrogatory 10 is ambiguous as stated by defense counsel. I do not find the State's response to be false, misleading or improper.

In response to interrogatory 12, Dr. Forte responded that the Practice Guideline is used in conjunction with his medical judgment and that the LFT testing intervals are not mandated. Claimant, a layman, disagrees with this answer and says it is false. Again he has failed to establish by affidavit of a medical professional that Dr. Forte's conclusion is patently false or medically improper. In the absence of such proof, the Court cannot find this response to be false, untrue or improper.

Claimant has offered no reason for his objections to the responses to interrogatories 17 and 18. In the absence of any proof that these responses are improper or untrue, the Court declines to so find.

The State's response to interrogatory 19 is that the question cannot be answered. The question is whether claimant's ALT level was ever elevated for a period of at least 4 to 6 months. This inquiry was previously made by claimant in his fourth set of interrogatories dated March 24, 2002. In MacKenzie v State of New York, (Claim No. 104536, Motion No. M-65095, filed July 11, 2002, Mignano, J., supra) this Court stated at page 7:

"Question 13 inquires as to the date claimant's ALT level was elevated for a four to six month period. Claimant is requesting the start date his ALT was elevated for a continuous period of four to six months. If the State has records of claimant's ALT levels, it should be able to determine if the number was elevated for a continuous period of four to six months and should provide such information to claimant. The Court grants the request to compel a response to question 13 and the State is to respond within 20 days of the date this decision is filed in the Clerk's office."

The State submitted a supplemental response to claimant dated July 30, 2002 answering interrogatory 13 of the March 24, 2002 set of interrogatories. I find this response sufficient. Therefore, interrogatory 19 of the April 19, 2002 request for interrogatories is redundant and does not now require a repeated response.

Based upon the foregoing, claimant's motion to compel pursuant to CPLR 3124 and for sanctions pursuant to CPLR § 3126 is denied.

The Court read and considered the following papers upon claimant's motion to compel and for sanctions:

Papers Numbered

Notice of Motion, Affidavit in Support
and Exhibits Attached 1

Affirmation in Opposition and
Exhibits Attached 2

Affidavit in Reply 3

Filed Papers: Claim and Answer

October 24, 2002
White Plains, New York

Judge of the Court of Claims

[1] See, MacKenzie v State of New York, Claim No. 104536, Motion No. M-65679, dated October 22, 2002, Mignano, J., which is identical.
[2] The Court notes that this is the fifth set of interrogatories that claimant has served upon the defendant with regard to this claim.