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
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
(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
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
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
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:
Notice of Motion, Affidavit in Support