New York State Court of Claims

New York State Court of Claims

OWENS v. STATE OF NEW YORK, #2004-018-441, Claim No. 104792, Motion No. M-68922


Claimant's motion for discovery after the filing of the note of issue is denied.

Case Information

JEFFREY OWENS, by MARY OWENS as Guardian of the Person and Property of JEFFREY OWENS, an Incompetent Person
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:
Attorney General of the State of New York
By: EDWARD F. McARDLE, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion to compel disclosure of certain documents. Defendant has

provided responses to some demands and objects to the remaining requests, asserting Claimant's untimely request and privilege.

This claim arises out of the treatment of Jeffrey Owens[1] a resident at Rome Developmental Center (hereinafter the Center), a State operated facility. The claim alleges that on July 3, 2001, between approximately 9:00 to 9:30 p.m., Mr. Owens was at the Center and was assaulted by an employee, Gary Davies (and another employee known only as Richard) using undue force and improper restraint. The claim was filed on August 27, 2001.

Pursuant to a preliminary conference Stipulation and Order, Claimant filed a note of issue in this matter on June 13, 2003. Although the time frame is not entirely clear to this Court, the specific dates not having been provided in the motion papers, it seems that during depositions certain document discovery demands were made and were to be provided at a later point. Despite Defendant's failure to provide the requested documents, Claimant filed a note of issue. Claimant's counsel now seeks, by this motion, six items (a-f) arguing that the information is necessary to assist their expert witness in formulating an opinion based upon all of the facts and circumstances. Defendant has provided responses to (a), (b), and (e), this decision will focus on (c), (d), and (f) only.

The Uniform Rules for the Court of Claims 22 NYCRR § 206.13(c) permit the Court to allow additional discovery where "unusual or unanticipated circumstances develop subsequent to the filing of a note of issue" to prevent substantial prejudice.

Claimant's counsel asserts that a key witness, namely Gary Davies, died apparently after the note of issue was filed,[2] but before Mr. Davies' deposition was conducted. Claimant's counsel also indicates, in his reply affirmation, that the information sought by this motion was requested during depositions but never provided. Under these circumstances, the Court will consider the merits of Claimant's motion to compel discovery after the note of issue has been filed.

Turning to the substance of Claimant's motion, Claimant requests the Court to order the production of the following:

(c) Was there any staff development training provided following this incident to prevent it from happening again, and if so, please provide such documentation;

(d) If there was a report documenting this incident, I have asked for a copy of it;

(f) I have requested any other material that may be helpful.

Defendant objects to the production of the documents and information requested in paragraphs (c) and (d) asserting privilege and exemption from disclosure pursuant to Education Law § 6527(3), Mental Hygiene Law § 29.29, and Mental Hygiene Law § 33.13(c). Defendant argues that the request in (f) is overbroad.

Education Law § 6527(3) protects from disclosure the proceedings and records:
relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program

[or] any report required by the department of health pursuant to section

twenty-eight hundred five-1 of the public health law described herein,

including the investigation of an incident reported pursuant to section

29.29 of the mental hygiene law
... (emphasis added)

Mental Hygiene Law § 29.29 requires an incident report, that is a report of accidents and injuries affecting patient health and welfare, must be made and investigated for any incidents of "...(1)(ii) violent behavior exhibited by either patients or employees" (emphasis added).

Claimant urges a restrictive reading of the relevant statutes as found by the Court's learned colleague, Judge Alan C. Marin, in Feliciano v State of New York, 175 Misc 2d 671 (1997). In that case, Judge Marin found the protections from disclosure provided by Public Health Law §§ 2805-1 and 2805-m and Education Law § 6527(3) did not extend to the investigation file of an incident involving the alleged sexual assault by an employee of the Bronx Children's Psychiatric Center, which he found involved more of a security function than a quality-of-care review. However, the Court of Appeals in Katherine F. v State of New York, 94 NY2d 200, found that an investigation file, which contained two incident reports, an investigation report and a safety department report, from the alleged sexual abuse and assault of a then 14 year old girl at the Bronx Children's Psychiatric Center, were exempt from disclosure pursuant to Education Law § 6527(3). The claimant in that case had requested all incident reports arising from the alleged abuse. The Court of Appeals held, similar to the finding of the Third Department, in Smith v State of New York, 181 AD2d 227, that the privilege provided in Education Law § 6527(3) applies to three categories of documents, one being documents generated in connection with an investigation of an incident required to be reported pursuant to Mental Hygiene Law § 29.29. The Court of Appeals found that a charge of sexual abuse based upon an employee's conduct clearly fell within the mandated reporting and investigation requirements of Mental Hygiene Law § 29.29 which "contemplates a quality assurance function" (Katherine F. v State of New York, 94 NY2d at 205). The Court of Appeals found that the incident reports requested were part of that function, and were protected from disclosure pursuant to Education Law § 6527(3). By ensuring the confidentiality of such incident reports, the Court of Appeals found that the quality of care will be furthered by promoting self-review without fear of legal reprisal.

Claimant's request for item (d), the incident report arising from the improper restraint or excessive force used upon Jeffery Owens by Defendant's employee, Gary Davies, falls squarely within the type of report required to be prepared pursuant to Mental Health Law § 29.29 and, under the analysis in Katherine F. v State of New York, is protected from disclosure pursuant to Education Law § 6527(3). (See Katherine F. v State of New York, 94 NY2d 200; Smith v State of New York, 181 AD2d 227; Finnegan v State of New York, 179 Misc 2d 694).

Claimant's request, item (c), for any documentation relating to post-incident staff development training however, does not, as Defendant asserts, fall clearly within Education Law § 6527(3). Defendant has not established that the information sought is part of a quality review function. Nonetheless, the Court is constrained to find any relevance to such documentation and questions why Claimant's expert would need post-incident documentation of the facility's staff training to prevent similar incidents in the future in order to form an opinion as to whether the State acted negligently at the time this incident occurred. Although the rules of discovery are broadly construed, at this late juncture, the Court declines to compel Defendant to comply with this demand.

Claimant's last request set forth in paragraph (f) is too broad and lacks specificity.

Accordingly, based upon the foregoing, Claimant's motion is DENIED.

October 14, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion...............................................................................................1

Affidavit of Gustave J. DeTraglia, Jr., Esquire, in support...............................2

Answering Affirmation of Edward F. McArdle, Esquire, Assistant Attorney

General, in opposition, with exhibit attached thereto............................3

Reply Affirmation of Gustave J. DeTraglia, Jr., Esquire, in support.................4

[1]The Claimant is actually Jeffrey Owens' guardian of the property.
[2]Although the reply affirmation does not state when Mr. Davies died, the note of issue includes a statement reserving discovery as to Mr. Davies.