New York State Court of Claims

New York State Court of Claims

BENITO v. THE STATE OF NEW YORK, #2004-032-075, Claim No. 109209, Motion No. M-68602


Pro se
inmate's motion for a protective order with respect to demands contained in defendant's demand for a bill of particulars and combined demand is denied, as such demands were proper and appropriate. Where the information demanded was unavailable or irrelevant to his action, claimant was free to so state.

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:
Gene Benito, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Dennis M. Acton, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 27, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This pro se claim alleges that on December 12, 2003, claimant, who was then an inmate at Bare Hill Correctional Facility, underwent an operation at Adirondack Medical Center to remove accumulated fluid deposits inside his left ear. At the same time, his left tonsil was removed, because it was believed to be probably cancerous. The surgery was performed by a Dr. John Decker, and claimant alleges that he failed to take any x-rays prior to surgery, thus causing an unnecessary removal of his tonsil and (by implication) leading to a bad operative result. Following the surgery, claimant observed bleeding from his left ear and experienced pain and tenderness at the site. He was subsequently informed that his left ear was permanently damaged and that he would lose 99% of his hearing in that ear. He was also informed that his left tonsil had not, in fact, been cancerous.

Claimant alleges that the loss of hearing and unnecessary loss of his left tonsil was caused by "the State's negligence in failing to properly train and supervise its State employees and/or agents" which led to the negligent medical treatment and "Dr. Decker's negligent act of failing to conduct any x-rays of claimant's left ear and tonsil area" prior to the surgery (claim, ¶ 4). By this motion, claimant seeks a protective order vacating or modifying defendant's demand for a bill of particulars, notice to take claimant's deposition, and demand for an authorization to obtain his employment records.

In his affidavit, claimant states that he has not made a good faith effort to resolve these disputes because he is a prisoner and attempting resolution by mail would only unduly delay the process (Benito affidavit, ¶ 10). Counsel for defendant asserts that without such good faith effort, the rules of the Court of Claims prohibit the motion from being heard (Acton affirmation, ¶ 3). This is not accurate. Rule 206.8(b) of the Uniform Rules for the Court of Claims (22 NYCRR §206.8[b]) no longer requires an affidavit of good faith effort to resolve the dispute. It has been amended to require that litigants confer with the assigned judge prior to commencing any discovery motion. By its express terms, however, this provision does not apply to prisoner pro se claims, such as this one.

With respect to the demand for a bill of particulars, claimant objects to the following specific demands (grouped where appropriate).
Demand No. 1: An itemized and detailed list of each and every item of damage.
Demand No. 12: Any item of damage not previously stated, including any claim for conscious pain and suffering and property damage.

Claimant contends that "[g]eneral damages need not be disclosed in response to a demand for bill of particulars," citing to Arett Sales Corp. v Island Garden Center Queens (25 AD2d 546 [2d Dept 1966]) and Miller v Village Voice, Inc. (79 AD2d 571 [1st Dept 1980]) (Benito affidavit, ¶ 5). Neither of those actions were for personal injury, however, and the plaintiffs had in fact informed defendant of the general categories of their damages: balances due on goods sold and delivered in Arett and loss of a legislative committee chairmanship and damage to reputation in Miller. The Court reads the comments in those decisions as restating the well-accepted principle that a bill of particulars is intended to amplify the pleadings, limit proof, and prevent surprise but that it is not to be used to obtain evidentiary proof (Liddell v Cree, 233 AD2d 593 [3d Dept 1996]). This does not mean that a claimant or plaintiff can keep a defendant in the dark as to the types or categories of damages that are being sought.
Demand No. 2: An itemized and detailed list of each and every act or other defect on the part of defendant that is alleged to be causally related to the damages claimed
Demand No. 9: An itemized and detailed statement of each and every injury which the claimant alleges will be permanent.

Claimant objects to these demands on the ground that this information "would require an expert opinion or the opinion of someone qualified in the field of medicine (id., ¶ 6). These demands go to the heart of the claim, and it will most likely be impossible to prove its central allegations without the opinion of someone qualified in the field of medicine. Claimant indicates that he intends to proceed on the doctrine of "res ipsa loquitur" (id.), but in this context even that would require the opinion of a medical practitioner in order to establish that the results on which the claim is based are results that do not happen in the absence of negligence.

It is also possible that surgery such as that performed on claimant may result in deafness, even if the operation is performed appropriately. It is also possible, even likely, that it is within the accepted standard of medical care to remove a tonsil that "appears" to be cancerous but which, in fact, may not be. Expert medical opinion will also be necessary to establish that the x-rays, which claimant contends should have been taken, would be able to reveal the condition that lead to the result of deafness or the fact that the tonsil was not cancerous. Neither claimant nor the Court, nor any layperson has sufficient knowledge of these medical considerations to be able to determine whether there was negligence in the treatment received by claimant, much less to be able to determine that his injuries were such that do not occur unless someone was negligent. Although claimant is not required to offer proof in response to a bill of particulars demand, he should be able to provide the general information requested by defendant. If he cannot do so, then it is unlikely that he will know what he must prove to make out a prima facie case of negligence and/or malpractice against the State.
Demand No. 3: Claimant's occupation at the time of his incarceration and details of his employment.
Demand No. 4: A list of claimant's occupational qualifications at the time of his initial incarceration and any subsequent enhancement to these qualifications

Claimant should respond to these demands if the damages for which he seeks compensation include loss of future earnings as a result of his injury.
Demand No. 5: Details of actual notice, if such notice is claimed.
Demand No. 6: Details of constructive notice, if such notice is claimed.

Claimant states that he will seek to prove no condition other than bleeding and pain attributable to the surgery and that as notice of such conditions he will use the call-out list for medical attention (id., ¶ 7). This is a satisfactory response to these demands.
Demand No. 7: Identification of any rule, regulation or statute which it is alleged that defendant violated.

Claimant states that he has not pled a statutory violation (id., ¶ 5). This is a satisfactory response to this demand.
Demand No. 8: An itemized and detailed statement of every injury suffered by claimant.

Claimant states that his only injuries are sufficiently stated in the claim, with the exception of partial loss of hearing in the right ear (id., ¶ 8). If this is the case, then claimant should have no difficulty in providing a list in response to this demand.
Demand No. 10: The length of time claimant was confined to a hospital, bed or cell as a result of the alleged injuries.
Demand No. 11: A list of all expenses incurred or anticipated for medical and hospital or other care and treatment.

In stating his objection to these demands (id., ¶ 9), claimant provides an adequate response to them.

Claimant also objects to that portion of the Combined Demand that seeks a signed authorization so that defendant can obtain his previous employment records. He states that these records would not be "material and necessary" to the action (id., ¶ 11). If he does not intend to claim, as an element of damage, any loss of future earnings, then claimant need only state that and make no other response to the demand.

Finally, claimant objects to the notice for an examination before trial and a physical examination on the ground that any interviews of prisoners must be conducted pursuant to the Rules and Regulations of the Department of Correctional Services (DOCS) and that defendant must obtain court oversight "before a correctional facility may be compelled to open its doors for deposition of one of its prisoners" (id., ¶ 12). As defense counsel accurately notes, the restrictions of CPLR 3106(c), which require court approval before an inmate of a correctional facility can be deposed, were enacted for the benefit of DOCS, a State agency that counsel represents. He is consequently in a position to waive such restrictions (Acton affidavit, ¶ 5). In any event, by bringing this action, claimant has implicitly consented to be deposed by defendant and, in light of the nature of the cause of action, to subject himself to a physical examination.

Contrary to claimant's assertion, defendant's various demands have not been made to harass him (Benito affidavit, ¶ 13). Instead, these demands are traditional and typical of the authorized inquiries that a defendant may make while preparing a defense against a claim or complaint. A claimant need only respond truthfully to such demands, indicating that no response will be given to those that he considers irrelevant to his claim. If defendant is dissatisfied with such a response, the burden will then be on it to move to compel a response.

For the reasons set forth above, claimant's motion is denied.

September 27, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for a protective order.
1. Notice of Motion and Supporting Affidavit of Gene Benito, pro se, with annexed Exhibit;

2. Affidavit in Opposition of Dennis M. Acton, Esq., AAG;

3. Filed papers: Claim; Answer; Bill of Particulars; Combined Demands.