This is an adjourned return date on claimant's motion for an order compelling a
response to his discovery demands (M-68037). Additionally, claimant has since
filed another motion in which he seeks sanctions against the assistant attorney
general in charge of his case and permission to revoke his medical authorization
form (M-68394). The State of New York (hereinafter "State") opposes both
A brief review of the discovery history in this case is warranted. This claim
arises from claimant's allegations regarding New York State Department of
Correctional Services employees preventing him from wearing his prescription
sunglasses despite a medical permit to do so. Claimant served the State with a
discovery demand dated September 30, 2003. After receiving no response from the
State for two months, claimant sent a letter to the State dated November 5, 2003
requesting a response to his first demand. Still hearing no response, claimant
then sent a second discovery demand dated December 21, 2003. After more time
passed without a response, claimant filed Motion No. M-68037, seeking an order
compelling a response to his discovery demands on February 17, 2004. The
State's response to the motion contained, among other things, a request for a
120-day adjournment. By way of Decision and Order, this court granted the
State's request for a 120-day adjournment (until June 9, 2004) of this matter in
order to allow the exchange of a medical authorization form between the parties
and subsequent preparation of supplemental discovery responses in connection
thereto. (Wigfall v State of New York
, Ct Cl, March 24, 2004, Lebous,
J., Claim No. 106859, Motion No. M-68037 [UID No.
As part of said Decision and
Order, the parties were instructed to keep the court advised, in writing, as to
the progress of discovery and/or make whatever supplemental submissions, if any,
to the court they deemed necessary in order to address any discovery issues
remaining after the State's responses thereto.
Motion No. M-68037
The court has received no subsequent submissions from either party specifically
addressing the substance of the State's discovery responses other than
claimant's objections to the requirement that he pay for photocopying costs
which will be discussed below. Rather, the only subsequent submissions relate
to claimant's motion for sanctions and return of his medical authorization form
and the State's response thereto. Consequently, it appears that the State has
responded to claimant's prior discovery demands and, as such, claimant's initial
motion to compel a response thereto will be denied as moot.
Motion No. M-68394
Claimant's second motion seeks various forms of relief including an order
directing the following: striking the State's answer; sanctioning the assistant
attorney general by requiring him to produce a complete copy of claimant's
medical chart at his expense; and issuing a "stay on authorization form."
By way of background, claimant's second discovery demand sought various
medical records from his file, as well as copies of his "[m]edical chart from
January 1, 1996, up until September 12, 2003, in (illegible) in complete order,
and dates in numerical order and chronological order." (Claimant's Discovery
Demand filed December 24, 2003, ¶ ¶ 3, 4, & 8). The State's
discovery response to these requests stated: "[t]his information would be
contained in claimant's medical records which cannot be obtained without a
proper medical authorization. Defendant has recently sent claimant discovery
demands. Included in the discovery demands is an authorization for release and
disclosure of health information. After claimant signs and returns the document
to the defendant, claimant will be required to pay the reproduction costs for
medical records of 25¢ per page." (State's Response to Discovery Demand
filed March 15, 2004, ¶ ¶ 3, 4, & 8).
Claimant did not return the authorization form at first. The State then sent
claimant a letter reminding him that he would need to sign the medical
authorization form and stated, in part, as follows: "[p]lease be advised that if
I do not receive the authorization within a reasonable period of time, the
defendant will move to dismiss your claim." (Letter from James E. Shoemaker,
AAG dated March 24, 2004 and annexed as an exhibit to claimant's affidavit in
support of M-68394). Claimant signed the form before a notary public on March
12, 2004 and returned the form to the State.
Now, by way of this motion, claimant argues that he has subsequently researched
the issue and finds no basis for the State's threat that his claim would be
dismissed if he failed to return the signed authorization form. Further,
claimant now seeks to retract that authorization form (or so the court
interprets his request for a "stay of authorization") arguing that the State
misled him into believing that he had to sign the form or else his claim would
be dismissed. The State indicates in its response hereto that it will await
further instruction on how to proceed by the court prior to obtaining claimant's
medical records using said authorization form. However, the State does note
that if the records are obtained it has the right to charge claimant for the
photocopying charge which it has been advised is $197.25 for 789 pages (25¢
First and foremost, the court finds that the assistant attorney general's
letter dated March 24, 2004 does not warrant sanctions since the State may well
have a basis for dismissal in the event claimant is unable to produce any
medical records in support of his claim or is unwilling to allow the State
access to the same. That having been said, however, the court need not issue
any decision on that issue since there is no such motion currently before the
Next, in this court's view, claimant has the option of retracting his signed
medical authorization form if he so chooses according to the terms thereof.
(Exhibit to claimant's reply). However, that being the case, then claimant's
corresponding discovery demands in which he sought copies of his medical chart
must be stricken as well. As such, the corresponding demands contained in
claimant's discovery demand dated December 21, 2003, specifically ¶ ¶
3, 4, and 8, are stricken. The State is directed to return the original medical
authorization form to claimant. In the event claimant wishes to obtain his
medical records in the future, he may request another medical authorization form
from the State, subject to the State's right to require claimant to pay
reasonable photocopying costs in advance of producing demanded discovery
documents. (Gittens v State of New York, 175 AD2d 530).
Accordingly, in view of the foregoing, it is ORDERED that Motion No. M-68037 is
DENIED AS MOOT; and Motion No. M-68394 is DENIED IN PART with respect to
sanctions and GRANTED IN PART in accordance with the foregoing.
Claim, filed October 31, 2002.
Discovery Demands, filed October 3, 2003.
Discovery Demands, filed December 24, 2003.
Notice of Motion No. M-68037, dated February 9, 2004, and filed February 17,
Affidavit of Joseph Wigfall, in support of Motion No. M-68037, sworn to
February 11, 2004, with attached exhibits.
Affirmation of James E. Shoemaker, AAG, in opposition to Motion No. M-68037,
dated March 8, 2004, and filed March 10, 2004, with attached exhibit.
Response to Discovery Demand, filed March 15, 2004.
DECISION AND ORDER, Lebous, J., Claim No. 106859, Motion No. M-68037, filed
March 24, 2004.
"Affirmation Reply Answer to Defendant's Motion of Opposition to Claimant's
[sic] to Compel Disclosure", of Joseph Wigfall, in support of Motion No.
M-68037, dated March 22, 2004, filed March 25, 2004, with attachment.
Notice of Motion No. M-68394, dated April 16, 2004, and filed April 28,
Affidavit of Joseph Wigfall, in support of Motion No. M-68394, unsworn to, and
dated April 16, 2004, with attachment.
Affirmation of James E. Shoemaker, AAG, in opposition to Motion Nos. M-68037
and M-68394, dated June 3, 2004, and filed June 7, 2004.