New York State Court of Claims

New York State Court of Claims

GARFIELD v. THE STATE OF NEW YORK, #2006-030-519, Claim No. 109818, Motion Nos. M-70785, CM-70878


Synopsis



Case Information

UID:
2006-030-519
Claimant(s):
RONALD GARFIELD, as Administrator of the Estate of LAURENCE GARFIELD, deceased The caption has been amended to reflect the only proper defendant.
Claimant short name:
GARFIELD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109818
Motion number(s):
M-70785
Cross-motion number(s):
CM-70878
Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
STEVEN K. MANTIONE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: GAIL P. PIERCE-SIPONEN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 28, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1 to 8 were read and considered on Claimant's motion to compel discovery and Defendant's cross-motion for an order granting summary judgment, granting a protective order, striking the Claimant's supplemental bill of particulars, and compelling Claimant to disclose:
1,2 Notice of Motion; Affirmation in Support by Steven K. Mantione, attorney for Claimant and attached exhibits

3,4 Notice of Cross-Motion; Affirmation in Opposition to Claimant's motion and in support of Cross-Motion by Gail Pierce-Siponen, Assistant Attorney General and attached exhibits

  1. Reply Affirmation and Affirmation in Opposition to Cross-Motion by Steven K. Mantione, Attorney for Claimant and attached exhibits
  1. Reply Affirmation by Gail Pierce-Siponen, Assistant Attorney General
7,8 Filed Papers[1]: Claim, Answer

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 ¶3 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.
Claimant's Motion to Compel
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 NYCRR §206.8(b).

As noted earlier, discovery of matter that is material and necessary is liberally allowed.

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 6-A.

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 deposition.

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.
Defendant's Cross-Motion to Dismiss, for a Protective Order/Discovery, for an Order Striking the Supplemental Bill of Particulars
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 §3001.

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 (1996)[2]. 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 theories suffice.

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.

February 28, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]Both counsel are reminded that all papers served upon a party are required to be filed with the Clerk of the Court. See 22 NYCRR 206.5(c).
[2] The factors the Court must consider to determine if a cause of action for a State constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole.