New York State Court of Claims

New York State Court of Claims

TAYLOR v. THE STATE OF NEW YORK, #2004-031-113, Claim No. 107432, Motion Nos. M-68608, M-68609


Claimant failed to demonstrate mistake of law or fact relating to previous motion. Claimant's motion to renew and/or reargue is denied. Claimant's motion for production of medical records is granted

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):
M-68608, M-68609
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 10, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 10, were read on motions by Claimant for reconsideration of my prior Decision and Order striking certain affirmative defenses asserted by Defendant, compelling disclosure from Defendant to Claimant and to another inmate, and compelling Defendant to send Claimant for treatment to a doctor not affiliated with Defendant; and for an order to have his medical file reviewed by a doctor not affiliated with Defendant:
1. Claimant's Notice of Motion (M-68608), filed June 10, 2004;
2. Claimant's unsworn Affidavit (M-68608), dated May 25, 2004;
3. Letter in opposition (M-68608) by Heather R. Rubinstein, Esq., dated July 22, 2004;
4. Claimant's letter in support of motion (M-68608), dated July 23, 2004;
5. Claimant's letter in response (M-68608), dated July 23, 2004;
6. Claimant's Notice of Motion (M-68609), filed June 3, 2004;
7. Claimant's unsworn Affidavit (M-68609), dated May 28, 2004;
8. Affirmation of Heather R. Rubinstein, Esq. (M-68609), dated July 22, 2004;
9. Claimant's letter (M-68609), dated July 23, 2004;
10. Filed documents: Claim and Verified Answer and prior motion decision with supporting papers. In this matter, Claimant has filed two separate motions relating to claim number 107432. Each motion is addressed in this decision. The first, M-68608, Claimant describes as a "Motion for Reconsideration of Court Decision and Order". The second motion, M-68609, is a motion for "Review of Medical File and X-rays." Both motions pertain to my Decision and Order, filed May 20, 2004, dealing with three other motions previously filed by this claimant. That is: 1. Claimant requested that the Court strike each affirmative defense asserted in Defendant's Verified Answer (M-66987); 2. Claimant requested that the Court compel Defendant to send Claimant for treatment to a doctor not affiliated with Defendant (M-67075); 3. Claimant requested that the Court compel Defendant to let another inmate, an unlicensed podiatrist, review certain x-rays taken of Claimant that are in Defendant's possession and to otherwise compel disclosure (M-67152).

In his underlying action, Claimant alleges medical malpractice and medical neglect relating to Defendant's failure to properly treat him for pneumonia. He alleges that this failure has resulted in permanent injuries to his lungs.
Procedurally, there is no such motion. However, the CPLR provides litigants with an opportunity to seek either reargument or renewal pursuant to CPLR 2221.

A motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221(d)(2)). The thrust of this motion is essentially Claimant's disagreement with the content of my prior Decision and Order.

Regarding my determination that his doctor of choice is not qualified to render a medical opinion on the content of Claimant's medical file, course of treatment rendered and whether it was the proximate cause of Claimant's alleged injury, Claimant has offered nothing in the way of law or fact that I overlooked or misapprehended. He is making the same argument he made in the prior motion. The instant motion is denied (Pahl Equip. Corp. v Kassis, 182 AD2d 22). Later in this decision, I will discuss the significance of the additional facts that Claimant has provided in support of this motion, but that were not before me in the prior motion.

Regarding his prior motion to dismiss Defendant's affirmative defenses, Claimant states Affirmative Defenses "Second" and "Fourth" should have been dismissed because he can not respond to what a third party may have done or had control over ("Second"). Nor can he be expected to respond to what State actions may be privileged inasmuch as the State's actions were done "in secret" ("Fourth"). Neither argument provides me with law or fact that were overlooked or misapprehended. This part of the instant motion is also denied.

Regarding his prior motion to compel discovery, Claimant submitted additional documents because I was obviously "proceeding from an ‘incomplete record'" (Claimant's letter of May 26, 2004). Inasmuch as this part of his motion contains new proof, it is a motion to renew and not a motion for reargument.

A motion to renew is based on new facts, not offered on the prior motion, that would change the prior determination; the motion "shall contain a reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221(e)(2) and (3)).

Claimant's correspondence of May 26, 2004 contained some 28 documents with attachments; essentially the discovery file in this matter. Claimant offers no justification for his failure to present the information to the Court in the prior motion. Thus, his request to renew is denied. I note that, even if he had presented a legally valid reason for not providing the information, there was nothing presented in the way of fact or law that would have changed the outcome of the prior motion.
Claimant requested in his prior motion (M-67075) that I compel Defendant to send Claimant to a doctor who is "outside the influence and employment of the DOCS." I denied Claimant's motion because this Court lacks jurisdiction to order this type of relief. He also asked that I order Defendant to provide Dr. David Perillo, an inmate at Auburn Correctional Facility, access to Claimant's medical file so Dr. Perillo could review, report, and essentially become Claimant's expert witness in this case (M-67152). I denied his motion at that time without prejudice.

Claimant now requests an order permitting Dr. David Perillo to inspect Claimant's medical file and render an opinion regarding the medical treatment Claimant received at the facility. It appears that Dr. Perillo is no longer incarcerated,[1] although the status of his medical license is unclear. Claimant has provided me with a letter setting forth Dr. Perillo's qualifications as a medical professional. It appears that Dr. Perillo may have sufficient background to provide some assistance to Claimant in the prosecution of his claim. What remains to be seen is the weight of Dr. Perillo's opinion at the time of trial.

Now that Dr. Perillo is no longer an inmate, he should have access to Claimant's complete medical record, once Claimant provides Defendant with the appropriate authorization form. However, Defendant is not obligated to provide Dr. Perillo with a copy of the file free of charge. Dr. Perillo will need to either review the file at the facility or have Claimant pay for a copy of the file.

Inasmuch as Claimant intends to make Dr. Perillo his expert witness, I remind the parties of the requirements of CPLR 3101(d).

Therefore, it is hereby

ORDERED, that Claimant's motion for reconsideration (M-68608) is denied in its entirety, and it is further

ORDERED, that Claimant's motion "To review medical file" is granted. Defendant shall, upon receipt of a properly executed authorization, make Claimant's medical records available for Dr. Perillo's review, or if Claimant so chooses, the records shall be mailed by Defendant to Dr. Perillo upon receipt of payment by Claimant of copying and mailing costs.

September 10, 2004
Rochester, New York

Judge of the Court of Claims

[1]Dr. Perillo's letter to this Court indicates an address in Raleigh, North Carolina.