New York State Court of Claims

New York State Court of Claims

PABON v. THE STATE OF NEW YORK, #2005-030-561, Claim No. 107525, Motion No. M-70661


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:
December 7, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Claimant's motion to compel

discovery and inspection:

1,2 Notice of Motion; Affidavit in Support of Renew Motion to Compel Discovery and Inspection by William Pabon, Claimant and attached papers

  1. Affirmation in Opposition to Motion to Compel Discovery and Inspection by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
4-6 Filed papers: Claim, Answer, Decision and Order Pabon v State of New York, Claim No. 107525, Motion No. M-68821 (Scuccimarra, J., October 26, 2004).[1]

William Pabon alleges in Claim Number 107525 that a surgeon to whom he was referred to for two surgeries by the New York State Department of Correctional Services (hereafter DOCS), Defendant's agent, committed medical malpractice in performing the surgeries in November 2000 and on August 14, 2001, respectively, causing him serious physical injury. In its Answer, in addition to general denials, the Defendant asserts as its second affirmative defense that the injuries complained of were caused in whole or in part by the culpable conduct of Claimant or others for whom the defendant has no legal responsibility.

As directed by this Court in its prior decision and order concerning discovery, the Defendant produced items noticed, or responded with reasons why items requested would not be produced, by November 30, 2004. [See Exhibit 3, Affirmation in Opposition to Motion to Compel]. Claimant disagrees with the position taken by Defendant concerning production of records primarily concerning Dr. Galeno, the outside consultant who performed the surgeries at issue, and production of records from St. Agnes Hospital, where the surgery was performed. Defendant takes the position generally that because Dr. Galeno may have provided services to Claimant on referral by DOCS pursuant to a contract between DOCS and outside providers they are not responsible for his alleged malpractice.

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 an 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).

Claimant's Notice for Discovery and Inspection asks for, among other things, information as to whether any lawsuits have been filed against Dr. Galeno for negligence or any other type of lawsuit, and seeks the docket number and other specifics if any lawsuits were filed; information as to whether Dr. Galeno is board certified ". . . by the Board that reviews competency", information as to "whether Dr. Galeno has been, or ever has been, sanctioned, admonished or otherwise reprimanded for any reason by the New York State Department of Health, or any other Health Department within or without the State of New York;" "how many operations similar to the one performed on claimant has Dr. Galeno performed . . . ", and the name of Dr. Galeno's insurance carrier. [See ¶¶ 2, 3, 4, 5, 6, 7 and 8, Exhibit 2, Affirmation in Opposition to Motion to Compel].

Except for the request at paragraph numbered 5 referring to information that would be in the control of another State agency - the New York State Department of Health - it is unclear how the balance of the information sought is material and necessary to the prosecution or defense of Claimant's claim in this Court, which can only be against the State of New York, not Dr. Galeno. See Civil Practice Law and Rules §3101. Since the State has raised as a defense in its answer that Claimant's injuries may be the result of the conduct of others for whom the State has no legal responsibility - such as, arguably, Dr. Galeno - information better available to the Defendant relative to its defense should be provided. Claimant's request for whether Dr. Galeno was ever sanctioned or otherwise disciplined by the New York State Department of Health is not, however, a request for documents or inspection, and is therefore denied.

Another request that is not one for documents or inspection but rather for information - although also arguably discoverable through interrogatories or through an examination before trial of a non-party witness - is Claimant's inquiry concerning "[h]ow many tort actions have been filled (sic) against Dr. Galeno by inmates at Green Haven who underwent the same operation as claimant." [ ¶ 9, Exhibit 2, Affirmation in Opposition to Motion to Compel]. The present application with respect to information concerning suits by Green Haven inmates is, therefore, denied.

With respect to Claimant's request for part of his medical records, the State has furnished at least a portion of same, and is hereby directed to provide Claimant, in writing, with the cost of copying whatever medical records pertinent to the surgical procedures that are the subject of this claim in DOCS' possession, within thirty (30) days of the filing date of this decision, and upon payment by Claimant of said fee to furnish such copies.

Accordingly, Claimant's motion [M-70661] is therefore granted in part and denied in part as set forth above.

December 7, 2005
White Plains, New York

Judge of the Court of Claims

[1] After the return date of the motion the Court received an additional document from Claimant entitled "Claimant's Reply", that appears to add requests to his earlier Notice rather than address the subject matter of Defendant's opposition to his present motion to compel. The Court has not considered this Reply in any event since it was untimely.