4,5 Filed Papers: Claim, Answer
After carefully reviewing the papers submitted and the applicable law, the
motion is disposed of as follows:
Civil Practice Law and Rules §3101, setting forth the scope of disclosure
in a civil case and applicable in the Court of Claims [See Court of
Claims Act §9(9)], provides in pertinent part that "[t]here shall be full
disclosure of all matter material and necessary in the prosecution or defense of
any action, regardless of the burden of proof . . . "
When a party fails to respond in some fashion to a demand, the other party may
make a motion to compel such as this one. Civil Practice Law and Rules
§§3124, 3126. The party making the motion should append a copy of the
demand at issue. Disclosure demands - which are by nature documents served on
another party - are required to be filed with the Chief Clerk of the Court of
Claims. See 22 NYCRR §206.5(c).
Michael Jennings, the Claimant herein, alleges in Claim Number 109448 that
Defendant's agents failed to provide him with adequate medical care while he was
in the custody of the New York State Department of Correctional Services
(hereafter DOCS) at various correctional facilities. In its Answer, in addition
to general denials, the Defendant asserted ten affirmative defenses, including
the Sixth Affirmative Defense alleging that the claim is time-barred because the
Notice of Intention to file a Claim was not timely served, and thus did not
extend the time to serve and file the Claim.
In prior Decisions, this Court granted Claimant's unopposed motion to dismiss
the Sixth Affirmative Defense. [Jennings v State of New York, Claim No.
109448, Motion No. M-68906, UID#2004-030-575,(Scuccimarra, J. filed October 6,
2004)]; and denied Defendant's motion to dismiss the claim based upon the Sixth
Affirmative Defense as well as other defenses related to timeliness and the
adequacy of the Notice of Intention. [Jennings v State of New York, Claim
No. 109448, Motion No. M-69120, UID# 2004-030-588, (Scuccimarra, J. filed
November 29, 2004)]. Notably, in denying Defendant's motion to dismiss the
court found that Claimant benefitted from the continuous treatment doctrine at
least up to and including November 29, 2003: the date the Notice of Intention
Additionally, in his Claim Claimant indicates he entered DOCS custody at
Downstate Correctional Facility in November, 2000, when he alleges Defendant's
failure to provide adequate medical care began. [See Claim No. 109448,
Claimant seeks an order compelling Defendant to produce various documents
requested in a Notice of Demand for Production of Documents for Discovery and
Inspection served on Defendant on or about July 22, 2004. [Exhibit C, Claimant's
Affidavit in Support]. On September 21, 2004 Claimant wrote to Defendant, still
seeking a response to his demands. [Ibid, Exhibit B]. The present motion
followed two months later, accompanied by an Affidavit of Good Faith by
Claimant. [Ibid, Exhibit A]. No motion for a protective order has been
brought by Defendant. Civil Practice Law and Rules §3103.
In her Affirmation in Opposition to the Motion to Compel Discovery and
Inspection, the Assistant Attorney General states that she has made good faith
efforts - and continues to make good faith efforts - to comply with Claimant's
discovery demands. She writes that the Defendant will provide a copy of
Claimant's medical record upon receipt of reproduction costs for 294 pages at $
.25 per page, or $73.50 payable to the New York State Department of Law. She
also indicates, however, that pursuant to New York State Department of
Correctional Services Directive 4040, the retention period for records of
grievances and internal memoranda is three (3) years. Since Claimant's requests
generally relate to the period from November, 2000 to August, 2002, Counsel
notes that at least some of the other documents may not be available at all as
they were generated beyond the retention period.
Defendant then further responds to Claimant's document requests as enumerated
in his Demand. [See Exhibit C, Pages 3-5, Claimant's Affidavit in Support
of Motion to Compel Discovery and Inspection; and ¶7 Defendant's
Affirmation in Opposition to Motion to Compel Discovery and Inspection.] The
specific requests in the portion of Claimant's request labeled "Documents" are
addressed here numerically as follows:
1-3. With respect to items numbered 1 through 3, seeking production of "any
and all" correspondence in letter or memoranda form between medical personnel
and Claimant during the month of November, 2000, Defendant indicates that none
exists, and in addition, that the requests are overbroad. Given the Defendant's
response that none of these documents exist, the Court does not rule on whether
the request is overbroad.
4. Denied. This request seeks production of "all correspondence received, and
investigations conducted into allegations of medical malfeasance on the part of
Defendant State of New York, that were conducted by Defendants Glen S. Goord and
Associate Commissioner Wright", and is clearly overbroad, and not material and
relevant to the causes of action asserted in the claim.
5. Granted as noted above. A copy of Claimant's medical file will be furnished
upon receipt of reproduction costs of $73.50.
6. Granted, in part, to the extent that Defendant is first directed to
ascertain whether records of correspondence between Dr. Takos, a physician at
Attica Correctional Facility and medical personnel, and between Dr. Takos and
Claimant, for the period from December 2000 to August, 2002 exist, and to
advise Claimant of same, in writing, within forty-five (45) days of the filing
date of this decision, since the response in the present motion - "same as
above" without reference to what part of the affirmation is referred to - is
unclear. Thereafter, if such records or a portion of such records exist, or if
this type of record is a part of documents already furnished - such as
Claimant's medical record generally - Defendant is directed to so advise
Claimant, in writing, within forty-five (45) days of the filing date of this
7. Granted, to the extent that if any investigation into allegations of
malpractice in the medical treatment of Claimant for the period from December,
2000 to August, 2002, was conducted, Defendant is directed to provide copies of
any and all reports, correspondence, or memoranda generated, unless Defendant
shall show good cause for not producing same at Claimant's expense, within
forty-five (45) days of the filing date of this decision.
8. Denied, to the extent that Defendant indicates such documents do not exist,
and also as duplicative, as some of the items requested are likely a portion of
Claimant's medical record if said physician is an employee of the State of New
York as alleged.
9. Denied as outside the scope of discovery in a claim such as this one that
alleges medical malpractice. There is no showing how documents in the custody of
the Chief Executive Officers of Correctional Facilities would be material and
10. Denied as documents not within Defendant's custody and control, since this
request seeks records from an outside hospital.
Accordingly, Claimant's Motion Number M-69349 to compel discovery is granted in
part and denied in part as set forth above.