New York State Court of Claims

New York State Court of Claims

LODGE-STEWART v. THE STATE OF NEW YORK, #2005-015-049, Claim No. 109063, Motion No. M-70656


Court denies motion seeking in camera review of mental health records of claimant's decedent's assailant. Records do not appear to exist and if they did claimant failed to demonstrate that interests of justice outweigh rights of mentally ill to confidentiality.

Case Information

IRENE LODGE-STEWART, Individually and as Administratrix of THE ESTATE OF NATHALIE LODGE, and as Guardian of decedent's daughter, minor child, TENAE TERELL LODGE
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:
Andrew J. Spinnell, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order pursuant to CPLR § § 3120, 3124 and 3126 directing defendant to produce "any and all psychiatric, psychological and all other records regarding the mental health of Robert Kinley for an in camera inspection by the Court" is denied. The claim seeks $20,000,000 in damages for the conscious pain and suffering and wrongful death of claimant's decedent on October 20, 2002 at 488 Kosciuszko Street, Brooklyn, New York resulting from an assault and battery committed by Robert Kinley, a parolee released from Willard Drug Treatment Center, Willard, New York. The claim alleges that the assailant was negligently released on parole and inadequately supervised affording him the opportunity to assault, batter, strangle and kill claimant's daughter Nathalie Lodge.

Claimant's attorney alleges in his affirmation in support of the motion that on July 8, 2005 he served a third notice of discovery and inspection (claimant's Exhibit A) seeking any and all psychiatric, psychological, and other records regarding the mental health of Robert Kinley while he was being housed at the Willard Drug Treatment Center between June 17, 2002 and September 17, 2002.

Defense attorney's July 27, 2005 response (claimant's Exhibit B) to said demand stated in relevant part:
1. Defendant objects to the production of psychiatric reports and/or records of Robert Kinley inasmuch as Mr. Kinley has not affirmatively placed his medical condition in issue and, therefore, his medical records remain confidential and cannot be produced in the absence of an authorization from Robert Kinley or a court order. The undersigned has reviewed the entire file of Robert Kinley maintained by the Division of Parole presently at its office located in Dannemora, New York, and advises that said file contains no psychiatric records or reports.

Claimant's attorney served a letter in reply requesting the defendant furnish an affidavit from the custodian of records or a person with knowledge of the facts alleged in the State's response to claimant's third demand. Defense counsel replied that claimant's request for mental health records was improper under HIPAA and Mental Hygiene Law § 33.13 absent a written authorization from Mr. Kinley or a court order. Defense counsel reassured claimant that he had personally inspected the file of Robert Kinley kept by the Division of Parole at Dannemora and that it contained no psychiatric records or reports. This motion ensued.

In opposition to the motion the defendant submitted the affidavit of Assistant Attorney General Michael C. Rizzo sworn to September 16, 2005 and the affidavit of Kathleen M. Kiley, Assistant Counsel for the Division of Parole sworn to September 13, 2005. Ms. Kiley asserts that she has reviewed all Division of Parole records regarding Mr. Kinley including his records from Willard Drug Treatment Center. She advises that upon such inspection no records regarding Mr. Kinley's mental health were found. Mr. Rizzo's affidavit is chiefly concerned with refuting the allegations of claimant's attorney that defendant failed to adequately respond in a timely fashion to claimant's third demand. He reiterated his objection regarding the relevance, confidentiality and discoverability of the mental health records of Robert Kinley and reasserted that, based upon his personal investigation undertaken as a courtesy to claimant, he found no mental health records in the Division of Parole's file on Robert Kinley.

In a reply affirmation received after the return date of this motion claimant's counsel sought to amend the motion to seek an order directing inspection and disclosure of records maintained at Five Points Correctional Facility. Claimant's belated attempt in this regard will not be countenanced by the Court since a motion to compel discovery can be made only after the party from whom discovery is sought has received a demand and failed to respond to such demand within a reasonable time (CPLR 3124, 3126). The demand giving rise to this motion (claimant's Exhibit A) did not seek records of Five Points Correctional Facility and it would be inappropriate to allow a new demand to be made in a reply affirmation.

The affidavits of Assistant Attorney General Rizzo and Assistant Counsel Kiley attesting to their personal inspection of Robert Kinley's Division of Parole file satisfy the Court that the mental health records sought in the instant motion do not exist. Accordingly, it is unnecessary to address whether and under what circumstances Robert Kinley's mental health records, if found to exist, might be discovered.

However, generally speaking "[i]nformation concerning medical diagnosis and treatment is privileged (CPLR 4504) and may not be disclosed absent a showing that a compelling interest overrides the privilege (Matter of Camperlengo v Blum, 56 NY2d 251; Matter of Jenkins v Martin, 99 AD2d 811; Perry v Fiumano, 61 AD2d 512), or that the interests of justice significantly outweigh the need for and the right of a mentally disabled patient to confidentiality (see, Mental Hygiene Law § 33.13 [c] [1]; see also, Mental Hygiene Law § 33.01; cf., Katz v State of New York, [41 AD2d 879])" (Exelbert v State of New York, 140 AD2d 665). The affirmation of claimant's counsel in support of the instant motion does not meet this exacting standard.

Claimant's motion is, in all respects, denied.

October 18, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 31, 2005;
  2. Affirmation of Andrew J. Spinnell dated August 31, 2005 with exhibits;
  3. Affidavit of Michael C. Rizzo sworn to September 16, 2005 with exhibits;
  4. Affidavit of Kathleen M. Kiley sworn to September 13, 2005;
  5. Affirmation of Andrew J. Spinnell dated September 20, 2005.