New York State Court of Claims

New York State Court of Claims

JENNINGS v. THE STATE OF NEW YORK, #2005-030-508, Claim No. 109448, Motion No. M-69349


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:
Third-party defendant's attorney:

Signature date:
February 4, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read and considered on Claimant's motion to compel disclosure [M-69349] brought pursuant to Civil Practice Law and Rules §3124:
1,2 Notice of Motion to Compel Discovery and Inspection; Affidavit in Support of Motion to Compel Discovery and Inspection by Michael Jennings, Claimant, with attached exhibits

  1. Affirmation in Opposition to Motion to Compel Discovery and Inspection by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibit
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 was served.

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, ¶9].

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 decision.

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 relevant.

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.

February 4, 2005
White Plains, New York

Judge of the Court of Claims