5-9 Filed Papers: Claim, Answer, Notice for Discovery and Production of
Documents and Things, Interrogatories & Request for the Production of
Documents and Things, Response to Claimant’s Discovery Demands
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
Claimant alleges in Claim Number 109883 that Defendant’s agents
negligently 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 Downstate Correctional Facility (Downstate) and Coxsackie Correctional
Facility (Coxsackie). Specifically, Mr. Kadry states that he was improperly
given medication to treat hepatitis - when he actually suffered from diabetes -
commencing on August 7, 2003 until an unspecified date, and developed vocal
chord paralysis and removal of his gallbladder in September 2003 as a result.
In his Affidavit in Support of the present motion, Claimant asserts that on or
about June 8, 2006 he served a Notice of Discovery for the Production of
Documents and Things, and the First set of Interrogatories [Exhibit C], upon
Defendant [Exhibit D], requesting a response within thirty (30)
Claimant sent a follow-up letter to the
Assistant Attorney General on August 1, 2006, having not received a response
[Exhibits F and G], and an additional request by letter on September 21, 2006
[Exhibit H]. As of the date of his affidavit, no response had been received. He
asks the Court to prohibit defendant from offering any evidence upon the trial
of the action as a sanction for willful failure to disclose. Civil Practice Law
and Rules §3126.
In an Affirmation in response, the Assistant Attorney General acknowledges his
failure to respond to the discovery requests in a timely fashion, and apologizes
for the delay, indicating that the documents obtained from DOCS were voluminous.
He has appended a copy of the documents obtained to his responding papers, and
indicates these have been furnished to the Claimant without a demand for payment
in light of the late response.
By letter dated October 3, 2006 the parties were notified that trial of the
matter was scheduled for Friday, December 8, 2006.
Pursuant to general disclosure principles, a party is entitled to “full
disclosure of all matter material and necessary in the prosecution or defense of
an action, regardless of the burden of proof . . . ” Civil Practice Law
and Rules §3101(a). Interrogatories are one disclosure device available to
a litigant, and are frequently used in lieu of depositions when an incarcerated
individual is a party. See generally
Civil Practice Law and Rules
§§3130, 3131. Any objections to questions are to be made with
responding party is not required to respond to “. . . interrogatories
[that] are unduly broad and oppressive . . .demand extensive amounts of
irrelevant information, [and] call for opinions and interpretations . . .
” Vancek v International Dynetics Corporation
, 78 AD2d 842 (1st
Dept 1980); see also Kamerman v Kolt
, 187 AD2d 564 (2d Dept 1992).
The responding party is also not required to anticipate what information the
interrogatories are seeking, but rather may respond only to the actual question
posed. See Meraner v Albany Medical Center
, 211 AD2d 867, 868 (3d
Dept 1995), lv dismissed
, 85 NY2d 968 (1995).
With regard to the discovery requests that are the subject of this motion,
Defendant has responded to the request with a Response to Claimant’s
Discovery Demands, and by production of a letter response from Lee-Ann Maier,
Nurse Administrator at Downstate, dated August 23, 2006, indicating some
employee names referenced in Claimant’s Ambulatory Health Record [AHR]; a
letter response from Dr. Jon Miller from Coxsackie, dated August 28, 2006,
indicating employee names and attaching facility directives concerning
tuberculosis policy; and what appears to be Claimant’s complete AHR for
the period from August 2003 through March 2006, including some documents from
outside health providers not under the control of DOCS. These records include
the names of medical personnel who treated Claimant at the facility. As noted
in the Response to Claimant’s Discovery Demands, only the State of New
York is a proper party in this litigation. St. Agnes Hospital and Albany
Medical Center are not facilities owned or operated by the State of New York and
are, therefore, not represented by the Office of the Attorney General. Copies of
any records from St. Agnes Hospital or from Albany Medical Center should be
sought directly from those institutions.
Civil Practice Law and Rules §3126 allows a Court to impose sanctions for
a party’s willful failure to disclose information that a Court finds
should have been disclosed, or for a failure to obey an order to disclose.
Here, the State has not refused to obey a court order, as there is no order
extant directing disclosure. See Civil Practice Law and Rules
§3124. Additionally, the State has now provided the information requested -
rendering any application to compel moot - and there is no conclusive evidence
that the State willfully failed to respond earlier. Issue was joined in April
2005 when the State served its Answer. Claimant’s attempt to obtain
consent discovery commenced in June 2006, and has now been successful.
Accordingly, Claimant’s motion [M-72516] to prohibit Defendant from
introducing any evidence as a sanction to be imposed pursuant to Civil Practice
Law and Rules §3126(2) is hereby denied.