Reply Affirmation 6
Claimant is the Administratrix of the Estate of Paul Anthony Malcolm, an inmate
who died at Auburn Correctional Facility on May 2, 2001, following an asthma
attack. In her amended claim, claimant has asserted three separate causes of
action. The first cause of action seeks damages for pain and suffering
allegedly suffered by Mr. Malcolm when he was exposed to a chemical agent
(pepper spray) on April 29, 2001. The second and third causes of action
allege medical malpractice against the State, seeking to recover money damages
for the pain and suffering and wrongful death of Mr. Malcolm, following an
asthma attack on May 2, 2001. In this motion, claimant seeks an order granting
her summary judgment as to liability on the medical malpractice causes of action
(the second and third causes of action).
In its opposition to this motion, the defendant has not taken any issue with
the medical affidavit of Dr. Blumberg submitted with claimant's motion.
Defendant has therefore not opposed that part of claimant's motion seeking
partial summary judgment as to liability on the two medical malpractice causes
The Court has reviewed the medical affidavit of Dr. Blumberg, as well as the
other medical records and evidence submitted by claimant herein, and finds that
claimant has made a prima facie showing of entitlement to judgment as a
matter of law (Winegrad v New York University Medical Center, 64 NY2d
851). Since defendant admittedly has not raised any triable issue of fact, the
Court finds that claimant has established her entitlement to summary judgment,
as to liability only, on the medical malpractice causes of action.
Additionally, and as mentioned at the outset of this decision and order,
claimant has also sought disclosure of certain specifically enumerated items,
contending that these items are relevant and material to either the first cause
of action (exposure to a chemical agent) and/or the issue of damages.
The Court will address these items in the order presented in claimant's motion:
(1) An Unredacted Copy of the Final Report of the New York State Commission
Claimant has previously been provided with a redacted copy of this Final
Report, but now seeks an unredacted copy. The parties agree that the redacted
portion of the report provides details of decedent's medical condition,
information which could be relevant with respect to the issue of damages. Since
claimant is Mr. Malcolm's duly appointed estate representative, and since
medical releases have been provided (as attested to by claimant's attorney),
claimant is entitled to an un-redacted copy of this final report, and defendant
is hereby directed to provide such report in accordance with this decision and
(2) Report of the Medical Review Board
In response to this demand, defendant's attorney advises that he has been
informed by the Commission of Correction that the Report of the Medical Review
Board is actually the same document as the Final Report of the Commission of
Correction (see No. 1 above). Claimant's counsel contends that references to
the Report of the Medical Review Board appear to indicate that this report is a
separate and distinct report from the Final Report of the New York State
Commission of Correction.
Therefore, in order to eliminate any question, defendant is hereby directed to
provide an affidavit from a knowledgeable person within the Commission of
Correction that these documents in question are actually one and the same. If,
however, there is a separate and distinct Report of the Medical Review Board,
the Court hereby directs the defendant to produce said document (Kozlowski v
City of Amsterdam, 111 AD2d 476).
(3) The File of the Inspector General's Office
Disclosure of an investigation file compiled by the Inspector General is
subject to the public interest privilege, which balances whether "the State's
interest in maintaining the integrity of its internal investigations and
protecting the confidentiality of sources who provide sensitive information
within a prison context, outweighs any interest of the claimant in seeking
access to the file" (Lowrance v State of New York, 185 AD2d 268, 269).
In this particular matter, given the fact that the Court has awarded claimant
summary judgment as to liability on her medical malpractice causes of action,
disclosure of the Inspector General's investigatory file would provide little,
if any, relevant information as to the issue of damages. The Court therefore
finds that the State's interest in maintaining the integrity of its internal
investigations into a highly secure area within a maximum security prison
outweighs claimant's interest in disclosure of this file. As such, the State
need not produce the investigatory file maintained by the Inspector General
pertaining to this incident.
(4) Memorandum of Superintendent of Security, dated October 22,
This memorandum purportedly addresses procedures for the use of chemical agents
within prison facilities. Since the issue of liability remains open as to the
exposure of decedent to a chemical agent on April 29, 2001, this memorandum may
provide relevant and material information and must be disclosed. Defendant, at
its option, may condition such disclosure upon the execution of an appropriate
"stipulation of confidentiality" by claimant's counsel.
(5) The full name, social security number, last known address and personnel
file of Nurse P. Haley
Since the Court has herein granted claimant's application for partial summary
judgment as to the issue of liability on the medical malpractice causes of
action, claimant has withdrawn this request.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-70506 is hereby GRANTED, in part; and it is
ORDERED, that the Clerk of the Court of Claims is directed to enter an
interlocutory judgment on the issue of liability in favor of claimant on the
second and third causes of action based upon medical malpractice, in accordance
with this decision and order; and it is further
ORDERED, that any disclosure required to be made by defendant pursuant to this
decision and order shall be made within 45 days of the date of filing of this
decision and order with the Clerk of the Court; and it is further
ORDERED, that all discovery shall be completed on or before May 1, 2006 and
that a note of issue and certificate of readiness shall be served and filed on
or before June 1, 2006.