New York State Court of Claims

New York State Court of Claims

GRANT v. THE STATE OF NEW YORK, #2003-031-026, Claim No. 98192, Motion No. M-66268


Claimant's motion to compel Defendant to transport him to see expert witness is 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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for an order compelling Defendant to permit and provide transportation to an outside meeting with Claimant's proposed expert medical witness:
1. Claimant's Notice of Motion, filed January 15, 2003;
2. Claimant's unsworn Affidavit, dated January 2, 2003, with attached exhibits;
3. Affidavit of Wendy E. Morcio, Esq., sworn to February 25, 2003, with attached exhibit;
4. Claimant's unsworn Reply Affidavit, dated March 9, 2003, with attached exhibit;This is Claimant Stephen Grant's motion to compel Defendant to permit him to attend and to transport him to a medical examination by his proposed expert medical witness. In his underlying action, Claimant seeks $19,844,234.36 for a number of incidents that occurred at Gowanda Correctional Facility. Claimant alleges, inter alia, that he was assaulted on July 10, 1996, by members of a prison gang known as the "five percenters." He claims that during the assault, his nose was broken and his septum deviated. According to Claimant, the State failed to properly diagnose his injuries after the assault. He claims that Defendant refused to x-ray him until July 19, 1996. After Defendant determined that Claimant's nose had been broken, he was told that he required corrective surgery, but Defendant failed to provide this recommended corrective surgery until February 27, 1998. Claimant alleges that this long delay caused him to heal in a less than satisfactory manner and resulted in permanent disfigurement.

Claimant argues in his motion papers that he requires an expert medical opinion to prove his medical malpractice causes of action and that, without the requested visit, he will not be able to secure this necessary testimony. It should be noted that, in order to provide Claimant time to secure expert testimony, the trial of this matter has been adjourned on three separate occasions.

Defendant objects to Claimant's motion, arguing that the proposed expert witness has indicated that he will not testify on Claimant's behalf with regard to the medical malpractice causes of action, and that the cost and security concerns raised by such an outside visit would improperly burden Defendant and the Department of Correctional Services ("DOCS").

After carefully balancing the legitimate concerns of both parties regarding the requested relief, I have decided that Claimant's motion should be denied and Defendant should not be required to transport and provide security for Claimant while he attends an examination in preparation for the prosecution of his claim. However, I find that Defendant should take reasonable measures to provide Claimant with the opportunity to secure his expert witness. Therefore, it is hereby

ORDERED, that Claimant's motion to compel Defendant to transport him to his proposed expert's office for a medical examination is denied. It is further

ORDERED, that Defendant shall transport Claimant to the DOCS facility corresponding to his current security classification which is located nearest Claimant's proposed expert's office in Williamsville, New York, at least two weeks prior to the trial of this claim. (The exact date of the trial has not yet been determined.) Defendant shall take the steps necessary to permit Claimant's expert access to Claimant for the purposes of conducting an examination during this period. In this event, Claimant shall provide to Defendant a written report from his expert concerning the expert's findings relating to this examination prior to trial. If Claimant prefers, this examination shall be conducted at Wende Correctional Facility on the morning of the trial, thereby preventing Claimant's expert from having to travel on two separate dates. In this event, Defendant's expert shall be permitted to observe the examination and, if necessary, Defendant will be granted an adjournment of the trial after Claimant has rested, so as to prepare the direct examination of Defendant's expert witness.

May 6, 2003
Rochester, New York

Judge of the Court of Claims