New York State Court of Claims

New York State Court of Claims

GARFIELD v. THE STATE OF NEW YORK , #2006-030-019, Claim No. 109818


Case Information

RONALD GARFIELD, as Administrator of the Estate of LAURENCE GARFIELD, deceased
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:
August 28, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

In a prior decision and order filed March 29, 2006 this Court directed Defendant, among other things, to produce records prepared in the normal course of business by the decedent’s group home for in camera inspection, and to provide a privilege log with regard to same; to provide personnel records of those employees who accompanied decedent on the day of the incident for in camera review; to provide a list of the names, job titles and business addresses of all staff involved in consumer care at the group home for a one (1) year period up to and including the date of decedent’s accident, or for the period since decedent was a resident, whichever is shorter, and if such staff are no longer State employees then Defendant was directed to so indicate. [See Garfiield v State of New York, Claim No. 109818, Motion No. M-70785, Cross-Motion No. CM-70878, unreported decision, (Scuccimarra, J., March 21, 2006)]
This is a claim alleging the conscious pain and suffering and wrongful death of Laurence Garfield due to the State’s negligence. Ronald Garfield, Claimant, is the administrator of the estate of Laurence Garfield, his son, and alleges that Laurence drowned in Prospect Park Lake in Brooklyn, New York on June 13, 2004, while on a field trip with members and staff of his group home, known as the 64th Street Home, operated by the New York State Office of Mental Retardation and Developmental Disabilities (hereafter OMRDD) through the Brooklyn Developmental Disabilities Services Office (hereafter Brooklyn DDSO). Specifically, Claimant alleges that because of the failure of Defendant’s agents to properly supervise and monitor those attending the trip, decedent became separated from the group and entered or fell into the lake, suffered significant physical and psychological injury, and died. A plethora of theories or causes of action are merged in ¶2 of the Claim served herein, but all relate to what circumstances may have led to the death of Claimant’s son, including failure to properly train employees and negligent supervision. In its Answer, in addition to general denials the State asserts six affirmative defenses.
Group Home Records
Defendant has produced for in camera review documents described as “Quality Assurance File, Pages 1 through 81”, and has appended a privilege log as directed specifying which of the documents produced it asserts qualify for the privilege from disclosure granted documents if prepared for Quality Assurance Review purposes. See Education Law §6527(3); Mental Hygiene Law §29.29. Education Law §6527(3) exempts three categories of documents from disclosure: (1) records relating to medical review and quality assurance functions; (2) records reflecting participation in a medical and dental malpractice prevention program; and (3) reports required by the Department of Health pursuant to Public Health Law §2805-l, including incident reports prepared pursuant to Mental Hygiene Law §29.29.
Indeed, all the documents referred to as “privileged” in Defendant’s privilege log appear to be privileged because if they are what is described, and were generated for the purpose asserted, then they are protected from disclosure. Other documents referred to in the log, including training materials at pages 23-40; decedent’s medical records, at pages 50-65; and the autopsy report at pages 74-81 have already been provided to Claimant.
Unfortunately, the Court was clearly not specific enough in its prior order directing disclosure because the documents are not certified by the record keeper, thus there is no way of telling whether these are all the documents maintained by the group home or the overseeing agency relative to the incident of June 13, 2004.

Accordingly, Defendant is directed to produce a complete certified copy of the records maintained by the group home or overseeing agency concerning the incident of June 13, 2004, within thirty (30) days of the filing date of this Interim Order, including but not limited to any progress notes or whatever internal memoranda is generated to communicate the consumer’s status from one staff member to the next, by whatever title the agency may choose to give such forms. The records should be appropriately certified as to completeness, paginated for ease of reference, and any privileges asserted should be noted in a privilege log.
As to what should be part of a privilege log, the “Court of Appeals . . . stated: ‘We recommend that a party seeking to protect documents from disclosure compile a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake an in camera review. The log should specify the nature of the contents of the documents, who prepared the records and the basis for the claimed privilege.’ (Matter of Subpoena Duces Tecum to Doe, . . . [99 NY2d 434, 442 (2003)]).” Marte v Brooklyn Hospital Center, 9 AD3d 41, 48 (2d Dept 2004); see also Eybers v State of New York, UID# 2005-029-460, Claim No. 108529, Motion No. M-69100 (Mignano, J., February 3, 2005). It remains the Defendant’s burden as the party asserting the privilege to establish that any document at issue was prepared under Education Law §6527(3). The Court will revisit the issue of whether release of the documents already provided for in camera review is prohibited pursuant to the privilege, when it receives certified records.
Personnel Records
Defendant has produced what appear to be copies of the personnel files of Erica Henderson, Harrington Joseph, and Delory Bains. Unfortunately, they are not certified by the record keeper, and, therefore, they are of limited utility for the court’s in camera review. Defendant is directed to produce complete certified copies of the personnel files of these same individuals within thirty (30) days of the filing date of this Interim Order. Any privilege log should again provide the nature and content of the document at issue, who prepared it and for what purpose, and the basis for the privilege claimed.
Names, Titles and Addresses of Staff
These have been listed in a “Supplemental Response to Demand for Discovery and Inspection pursuant to Decision of March 21, 2006" filed in the Office of the Chief Clerk on May 11, 2006, and pursuant to a So Ordered stipulation the last known addresses of Harrington Joseph, Delory Bains and Erica Henderson have presumably been provided to Claimant pursuant to Public Officers Law §93. If Claimant seeks the last known addresses of any of the former employees listed in the discovery response, a further application for disclosure pursuant to the Personal Privacy Protection Ace must be made within thirty (30) days of the filing of this Interim Order.
Further Discovery/Note of Issue
By stipulation filed August 8, 2006, the parties extended the time within which a note of issue would be filed to August 31, 2006. This date is clearly no longer realistic. Counsel are directed to furnish a further stipulation to be “so ordered” by the Court if it is approved.
After the court has received the certified documents it has directed be furnished herein, and reviewed same, written requests for a further compliance conference will be considered.
So Ordered.

August 28, 2006
White Plains, New York

Judge of the Court of Claims

[1]. Since this decision and order was filed the Court notes that Defendant has responded to a Supplemental Notice for Discovery and Inspection dated April 19, 2006, in a document filed with the Clerk’s Office on May 19, 2006. The actual notice served by Claimant has not been filed with the Clerk’s Office. Counsel are again advised of the requirement that all papers served upon a party must be filed with the Clerk of the Court. See 22 NYCRR §206.5(c).
[2]. The Court has reviewed the underlying papers submitted with respect to its prior decision and order and notes that although Claimant would be entitled to disclosure of reports and other paperwork concerning decedent made in the regular course of business by those rendering care to group home residents, since not all such documents are made for quality assurance purposes, Claimant did not ask for such records in the voluminous request for documents. Presumably these have been obtained by other means.