New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2006-031-067, Claim No. 104786, Motion Nos. M-71643, CM-71701


Completeness of Claimant’s medical record was addressed by Court previously and is law of the case. Claimant’s motion for sanctions based upon loss of portion of medical record is denied

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:
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 1, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for sanctions against Defendant relating to the loss of portions of Claimant’s medical record, and on cross-motion by Defendant to preclude testimony from Claimant’s expert witness:
1. Claimant’s Notice of Motion (M-71643), filed May 2, 2006;
2. Affidavit of Jason M. Kobin, Esq., sworn to April 28, 2006, with attached exhibits;
3. Defendant’s Notice of Cross Motion (CM-71701), filed May 15, 2006;
4. Affirmation of Reynolds E. Hahn, Esq., dated May 11, 2006, with attached exhibits;
5. Reply Affidavit of Jason M. Kobin, Esq., sworn to May 22, 2006, with attached exhibit. With this motion, Claimant seeks sanctions against Defendant for the loss of portions of Claimant’s original medical record. Defendant has filed a cross-motion in which it seeks to preclude Claimant’s expert from testifying based upon alleged inadequacies in Claimant’s expert response. Defendant has since represented its desire to withdraw the cross-motion in light of Claimant’s supplemental response to Defendant’s expert witness demands. Accordingly, cross-motion CM-71701 is deemed withdrawn and will not be addressed.

In his underlying action, Claimant, Victor Rivera, asserts that agents of Defendant committed medical malpractice by failing to diagnose and properly treat Claimant for colon cancer between July 1995 and December 1998.

With this motion, Claimant argues that there are many portions missing from Claimant’s original ambulatory health record, a document maintained by Defendant. Claimant argues that his case has been prejudiced by the loss of these records and requests that Defendant be sanctioned.

In responding to Claimant’s motion, Defendant points out that this issue has already been addressed by both Judge Patti and the Appellate Division, Fourth Department. Indeed, in his Decision and Order filed on September 19, 2003, Judge Patti does determine quite unambiguously “that the medical records covering the period from July 1995 to September 1998 that are submitted on this motion are, in fact, copies of Claimant’s complete medical records for that time period and that they duplicate what would have been in the original DOCS file. Accordingly, arguments by either party based on the fact that the original records are missing will be disregarded” (Claimant’s Exhibit C, p. 6).

Claimant argues, however, that he did not have a full and fair opportunity to litigate this issue before Judge Patti and that the “Appellate Division, Fourth Department’s June 10, 2005 Decision reversing Judge Patti’s dismissal of Claimant’s action is silent in connection with Judge Patti’s ruling regarding the completeness of the medical record” (Kobin Reply Affidavit, par. 5). I find this argument to be without merit.

I find that this issue was presented to Judge Patti and that it was resolved in his September 19, 2003 Decision and Order. Indeed, the first five pages of Judge Patti’s decision dealt with this issue which, as he stated, “runs throughout the arguments of both parties to this action” (Claimant’s Exhibit C, p. 2). Judge Patti went to great lengths to review and address this issue. His denial of summary judgment to Claimant was based, in large part, upon this determination. I find that his decision is law of the case and see no reason to disturb it (Dondi v Jones, 40 NY2d 8, 15; Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, Inc., 128 AD2d 467). Further, Claimant’s appeal of Judge Patti’s denial of summary judgment was, to a large extent, based upon Claimant’s argument that Judge Patti had erroneously determined that the medical records were complete. This was point 1 in Claimant’s appellate brief. Far from being silent on this issue, the Appellate Division, Fourth Department, modified that portion of Judge Patti’s decision that granted summary judgment to Defendant, but affirmed the remainder of Judge Patti’s decision, including the denial of summary judgment to Claimant (Claimant’s Exhibit D).

Finally, even if the doctrine of law of the case did not prevent my addressing this issue, I would deny Claimant’s motion as Claimant has made no showing that the alleged loss of the medical records, was willful or that Claimant has been prejudiced (Mylonas v Town of Brookhaven, 305 AD2d 561).

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Claimant’s motion M-71643 for sanctions against Defendant is denied in its entirety.

November 1, 2006
Rochester, New York

Judge of the Court of Claims