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. Notably, disclosure demands and responses - 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 was given permission to proceed with a motion to compel disclosure in
light of what appeared to be a breakdown in consent disclosure. See 22
As noted earlier, discovery of matter that is material and necessary is
The Court has reviewed the Notice for Discovery and Inspection served upon
Defendant on or about February 16, 2005 [Affirmation by Steven K. Mantione,
Exhibit C], as well as the Defendant's Response to the Demand for Discovery and
Inspection. [ibid. Exhibit F]. The Court is reluctant to sift through
these demands and responses, since neither party has chosen to withdraw their
respective applications despite the obvious fact that during the pendency of
this motion the information needed and the information provided has changed.
For example, counsel for Claimant should have been aware that an authorization
was required based on the State's response to Claimant in April 2005. Such
authorization has since been provided. Some of Claimant's requests have been
rendered moot, and/or concern privileged materials that are simply not
discoverable. Additionally, many requests are overbroad, and while the Court
appreciates that expansive language is used in order to avoid semantic
distinctions that may be advanced by one party or the other, it is not the
Court's job to try to parse through the exhaustive requests.
Claimant has provided Defendant with an authorization releasing decedent's
medical, psychiatric and remedial treatment file records concerning decedent's
care while a resident at the 64th Street Home. [See Reply Affirmation and
Affirmation in Opposition to Cross-Motion by Steven K. Mantione, Exhibit C].
As noted by Defendant, police accident reports are equally available to
Claimant as public records and from the context of the papers appear to already
have been reviewed by Claimant in any event.
Defendant is directed to produce copies of any photographs taken at the scene,
at Claimant's expense, if it intends to use them for deposition or trial
purposes. Any photographs not produced and then subsequently offered at trial
will be precluded.
If the Defendant is not disputing that the State owned, operated or managed the
resident group home facility then the request for copies of any lease agreements
for the group home is denied as irrelevant. If there is a dispute as to the
entity in whose care decedent was entrusted then the Defendant is directed to
produce copies of any lease agreements not part of the public record concerning
the group home.
Any incident reports prepared concerning this incident by the facility are
likely privileged from disclosure if prepared for Quality Assurance Review
purposes. See Education Law §§6527 and 6529; 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. Incident reports are
defined as "reports of accidents and injuries affecting patient health and
welfare." Mental Hygiene Law §29.29. Clearly, records generated at the
behest of a quality assurance committee for quality assurance purposes,
including compilations, studies or comparisons derived from multiple records
should be privileged, whereas records simply duplicated by the committee - such
as the patient's progress reports or treatment plans or clinical records - are
not necessarily privileged under this rubric. The attendant case law has further
interpreted the privilege as being in the interest of public policy, to ensure
that investigations into incidents occurring at mental health or other health
care facilities not be limited by an inability to obtain frank discussion of the
incidents at issue that lack of confidentiality would engender. See e.g.
Brathwaite v State of New York, 208 AD2d 231 (1st Dept 1995); Smith v
State of New York, 181 AD2d 227 (3d Dept 1992); see also Katherine
F. v State of New York, 94 NY2d 200 (1999). Most importantly, it is the
party who asserts the privilege who has the burden of establishing that the
documents were prepared in accordance with the relevant statutes. Apparently,
the review committee has drawn a conclusion, and Claimant has already obtained a
copy of that conclusion. [See Affirmation in Opposition to Claimant's
Motion and in Support of Cross-Motion, Exhibit J]. As is always the case with
these types of reports, furnished in redacted form because of the privilege,
they raise more questions than they answer.
Bearing in mind the causes of action asserted in the claim herein, some of
which are pled as alternative theories, Claimant is entitled to disclosure of
reports and other paperwork made in the regular course of business by those
rendering care to group home residents - or consumers - since not all such
documents are made for quality assurance purposes.
Without any frame of reference as to what paperwork was generated or is
generally generated, however, making a determination as to what specific
documents are protected is impossible. Accordingly, Defendant is directed to
submit a privilege log itemizing those documents claimed to be privileged within
thirty (30) days of the filing date herein. Alternatively, Defendant is directed
to provide an affidavit by someone with knowledge as to what documents were
prepared for quality assurance purposes to both Claimant and the Court within
the same time frame.
Defendant is directed to provide a list of the names, job titles and business
addresses of any employee, independent contractor and/or volunteer witnesses to
the accident, including all employees, independent contractors and volunteers
who accompanied the group on the date of the accident, if such names have not
already been produced. To some extent, this information appears to already be
known to Claimant and/or has been provided while these motions were pending. As
noted by Counsel for the Defendant, if individuals are no longer employees -
information that should be provided, in writing, if it has not already been
provided, within thirty (30) days of the filing date of this decision -
application for disclosure of their last known address should be made by motion,
to be made within sixty (60) days of the filing date of this decision, pursuant
to the Personal Privacy Protection Act. See Public Officers Law Article
Defendant is directed to provide the names, job titles, and business addresses
of all staff involved in consumer care working at the 64th Street 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 at the 64th Street Home up to and including
the date of decedent's accident whichever is shorter. If such staff is no longer
employed by the State, again Defendant is directed to so indicate within thirty
(30) days of the filing date herein. Claimant may then make further application
for disclosure of the last known address of those former employees pursuant to
the Personal Privacy Protection Act within sixty (60) days of the filing date
herein. See Public Officers Law Article 6-A.
Defendant has agreed to produce for deposition the individual employees who
accompanied decedent on the trip according to correspondence dated September 26,
2005 appended to the cross-motion, but notes in the correspondence that "as to
any State witness produced, to the extent that questioning involves either
confidential training issues that have not been subject to in camera or involved
post incident QA review and action, I will object to any questioning in these
areas." [Affirmation by Gail P. Pierce Siponen, Exhibit I]. How the training
received by State employees is "confidential" and may not be the subject of
questions during an examination before trial is unclear. Accordingly, unless
some more specific objection supported by a specific statute or case law is
presented, the Court does not see why obtaining information concerning the
training of relevant employees when they are being deposed is privileged.
Additionally, copies of instructional and training material were demanded in the
initial Notice for Discovery and Inspection relative to the broader, "all
employees," request. [Affirmation in Support by Steven K. Mantione, Exhibit C].
Defendant is directed to provide copies of such material relative to those
employees who accompanied the decedent on June 13, 2004, prior to their
As to personnel evaluations and other personnel records of any of these
employees, Defendant is directed to produce the personnel files of the employees
accompanying decedent on June 13, 2004 for in camera inspection and
review within thirty (30) days of the filing date of this decision. After such
inspection, the Court will determine what portions, if any, are subject to
disclosure and direct the Defendant accordingly. Contrary to Defendant's
characterization of the claim, causes of action premised on respondeat superior
are raised alternatively.
Defendant is directed to furnish copies of protocols or guidelines concerning
field trips, if any - including staffing requirements - applicable on June 13,
2004, within thirty (30) days of the filing date of this decision.
Defendant is directed to furnish a copy of the shift assignment sheet for the
group home on June 13, 2004, and for a thirty (30) day period prior to June 13,
2004, within thirty (30) days of the filing date of this decision.
The balance of the demands have either been appropriately responded to, or are
denied as overbroad or irrelevant.
The discovery aspects have been dealt with above. Presumably, two officers of
the Court will be able to schedule the appropriate depositions without Court
intervention. As noted by Defendant, the State has priority.
The motion to dismiss as to the causes of action alleging violations of the
United States Constitution and those premised on violations of the New York
State Constitution, as well as those causes of action directed against
individual employees, is hereby granted.
It is axiomatic that the Court of Claims is a court of limited jurisdiction
that may only exercise jurisdiction in cases or controversies for money damages
in which the State or - certain statutorily prescribed entities - is a party.
Court of Claims Act §9. It does not render declaratory judgments except
under very limited circumstances not present here. Court of Claims Act §9
(9-a). No cause of action against the State of New York exists for alleged
violations of an individual's rights under the United States Constitution
[See Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001);
Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989); Davis v
State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is
not a "person" amenable to suit pursuant to 42 USC §1983. The Court of
Claims lacks jurisdiction over challenges to the constitutionality of State
statutes. See Cass v State of New York, 58 NY2d 460, 463 (1983)
rearg denied 60 NY2d 586 (1983). Such causes of action should be brought
in Supreme Court, even if they also include claims for money damages against the
State of New York. Cass v State of New York, supra; Shields v
Katz, 143 AD2d 743, 744 (2d Dept 1988); Civil Practice Law and Rules
Additionally, although State constitutional provisions are presumptively
self-executing in New York, violation of every self-executing provision of the
New York State Constitution will not always support a claim for damages as a
constitutional tort. Brown v State of New York
, 89 NY2d 172, 186
. Only where it is necessary to ensure
the effectiveness and promote the purposes of the allegedly violated provision
will a constitutional tort remedy be implied. This is simply not the case
where, as here, causes of action premised on more conventional negligence
Finally, this Court is not in the business of being a vehicle to further
discovery for law- suits alleging civil rights violations to be brought in other
forums, as suggested in Claimant's papers.
With respect to the application to strike the Supplemental Response to the
Demand for Bill of Particulars, it is hereby stricken, in that it does not
merely amplify the pleadings but rather adds additional causes of action
sounding in medical or psychiatric malpractice. See Civil Practice Law
and Rules §3043(b). Although there appear to be legitimate portions in the
supplemental bill supplementing the causes of action sounding in ordinary
negligence, the failure to use separately numbered paragraphs, if only for ease
of reference, makes them unintelligible. If what Claimant is really seeking is
amendment of his claim, then he should proceed accordingly. See Civil
Practice Law and Rules §§3012-a; 3025. If Claimant wishes to file a
Supplemental Bill of Particulars he should do so, eliminating those parts
including acts or omissions sounding in malpractice.
The time within which to file a Note of Issue and Certificate of Readiness
expired on January 15, 2006. The time within which to file a Note of Issue and
Certificate of Readiness is hereby extended to June 30, 2006. Any further
extensions shall be made by written stipulation of both parties to be so ordered
by the Court if it approves. The specific reason why such extension is
requested shall be expressed in writing as well. The Court is not interested in
hearing whose fault it is regarding any failure to communicate. If counsel are
in disagreement, they are to place the disagreement in writing and the case will
be put on the Court's calendar call.