New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2004-034-503, Claim No. 106623, Motion No. M-67119


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: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 11, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has moved pursuant to CPLR 3102 (a) and 3124 seeking to compel discovery of reports relating to an incident at the Buffalo Psychiatric Center on or about March 7, 2002. Defendant has opposed the motion on the basis that the reports sought by the Claimant are privileged under Education Law § 6527.

The Court has considered the following papers in connection with this Motion:
1. Notice of Claim, verified August 22, 2002, filed September 12, 2002;

2. Answer with Counterclaim, verified November 4, 2002, filed November 6, 2002;
3. Reply, unverified, dated January 14, 2003, filed January 16, 2003;
4. Notice of Motion, dated July 1, 2003, filed July 21, 2003;

5. Affidavit of David P. Feldman, Esq., sworn to June 6, 2003, with attached exhibits;
6. Claimant's Memorandum of Law;

7. Affidavit in Opposition to Claimant's Motion to Compel of William D. Lonergan, Esq., sworn to July 16, 2003, filed July 17, 2003, with attached exhibits;

8. Affidavit of David Givens, sworn to July 16, 2003;
9. Defendant's Memorandum of Law.

On consideration, the Court will grant Claimant's request in part, subject to an in camera review.

Claimant has sought to recover for injuries allegedly sustained on or about March 7, 2002, while a patient at the Buffalo Psychiatric Center. Mr. Smith contends that on that date he was assaulted by another patient at that facility, and that Defendant was negligent with its failure to maintain adequate security for his protection. He filed his Claim on September 12, 2002, and following Defendant's Answer and Counterclaim, and his Reply, Claimant served an omnibus discovery demand on or about January 21, 2003. Defendant initially objected to four of the ten demands, claiming privilege under Education Law § 6527, then subsequently withdrew its objection to the tender of photographs, such that three demands remain in dispute. Claimant has now sought an order compelling disclosure of the following:
  1. Copies of all statements, writings, whether signed or otherwise of the Defendants, their agents, servants and employees.
  2. All reports prepared by any person, including but not limited

    to agents, employees or representatives of a party, concerning the occurrence, which is the subject of this litigation.
  3. Pursuant to Sec. 3101(g) of the CPLR and Pataki v. Kiseda 437 2d 692 [sic]; and Chaplin v. Pathmark 435 2d 497 [sic], demand for disclosure is hereby made of all accident and investigative reports, whether in the possession of the Defendant or its liability carrier.
The Court will strike Item 1 of Claimant's Omnibus Discovery Demands without prejudice to the service of a proper demand. Defendant has objected on the ground that the notice seeks information protected from disclosure under Education Law § 6527 (3). The Court finds the demand to be so overbroad as to preclude any effective direction that those documents be produced for an in camera review to determine the applicability of the claimed privilege. For that reason the demand is struck as palpably improper, even absent a challenge on that specific basis (see Kern v City of Rochester, 261 AD2d 904, 905; Holness v Chrysler Corp., 220 AD2d 721, 722).

Defendant's objections to Items 2 and 10 also are based upon Education Law § 6527 (3), and by reference therein, Mental Hygiene Law § 29.29. Those statutes, when read together, preclude discovery of a facility's medical review and quality assurance functions, as well as investigations of patient abuse (Katherine F. v State of New York, 94 NY2d 200, 204-205), and the Court will deny Claimant's motion to the extent such records are sought. Clearly, however, not all records prepared and maintained by a facility would derive from its medical review, quality assurance and investigation functions, and thereby be exempt from disclosure (see Crea v Newfane Inter-Community Mem. Hosp., 224 AD2d 976 [information not actually obtained as part of process to which privilege applies is not protected from disclosure]), and the Court will order an in camera review of all reports referencing the incident on or about March 7, 2002, to determine whether some records are not properly subject to the statutory exemption.

Based on the foregoing, Defendant is ordered to produce responsive documents as described in this Order for the Court's in camera inspection within 45 days of the filing date of this Order.

February 11, 2004
Buffalo, New York

Judge of the Court of Claims