New York State Court of Claims

New York State Court of Claims

STEINBERG v. THE STATE OF NEW YORK, #2007-030-534, Claim No. 108971, Motion No. M-72963


Synopsis


Claimant’s motion to compel deposition of specific physician at Woodbourne Correctional Facility granted. While the employees already deposed may have had knowledge with regard to some treatment given to this claimant, and while there is some danger of eliciting cumulative information, this doctor can nonetheless also contribute material and relevant information with regard to claim of negligence and medical malpractice

Case Information

UID:
2007-030-534
Claimant(s):
JONATHAN STEINBERG
Claimant short name:
STEINBERG
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108971
Motion number(s):
M-72963
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ELMER ROBERT KEACH III, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 30, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion to compel the deposition testimony of Mervat Makram, Facility Health Services Director of Woodbourne Correctional Facility:
1,2 Notice of Motion; Affirmation of Elmer Robert Keach, III, Counsel for Claimant and attachments

  1. Affirmation in Opposition to Motion to compel by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
4,5 Filed papers: Claim, Answer

Jonathan Steinberg alleges in his claim that defendant’s agents 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 various correctional facilities from November 2000 to June 4, 2002. It appears Claimant was ultimately diagnosed with the disease sarcoidosis on March 8, 2002. Claimant alleges his medical condition was ignored, improperly diagnosed, and then continued to be untreated.
DISCUSSION AND CONCLUSION
Civil Practice Law and Rules §3101(a) requires generally that there shall be “. . . full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . . ” In the context of depositions, it is well settled that a Defendant municipality or other entity such as a corporation or the State of New York or its agencies initially “. . . has the right to determine which of its officers with knowledge of the facts may appear for pretrial examination (D’Ulisse v Town of Oyster Bay, 81 AD2d 825[2d Dept 1981]; Consolidated Petroleum Term. v. Incorporated Vil. of Port Jefferson, 75 AD2d 611[2d Dept 1980]). Only when the plaintiff establishes that the knowledge of the proffered official is insufficient to produce testimonial and documentary evidence ‘material and necessary’ to the prosecution of the action . . . may the court grant a motion for the production of additional witnesses (supra). Further, a party seeking to depose additional witnesses must make a detailed showing of the necessity for taking such depositions (Ayala V City of New York, 169 AD2d 530 [1st Dept 1991]; cf. Simon v Advance Equip. Co., 126 AD2d 632 [2d Dept 1987]).” Colicchio by Colicchio v City of New York, 181 AD2d 528, 529 (1st Dept 1992); see also Sangiacomo v State of New York, UID# 2004-032-084, Claim No. 107450, Motion Nos. M-68453, CM-68720, CM-68809 (Hard, J., September 29, 2004). The Claimant must show that the witnesses already deposed “. . . had insufficient knowledge or were otherwise inadequate, or that further discovery

. . . [is] warranted by reason of a substantial likelihood that additional persons sought for deposition possessed . . . information material and necessary . . . (citations omitted).” Hayden v City of New York, 26 AD3d 262 (1st Dept 2006); see also Radon Construction v Alcon Construction Corp., 277 AD2d 368 (2d Dept 2000)[1]; Zollner v City of New York, 204 AD2d 626, 627 (2d Dept 1994)[2]; Simon v Advance Equipment Co. Inc., 126 AD2d 632 (2d Dept 1987)[3]. Successive depositions should not be cumulative.

By this motion, Claimant seeks to compel the deposition of Mervat Makram, the Facility Health Services Director of Woodbourne Correctional Facility. Counsel for claimant indicates that in a prior deposition of DOCS medical personnel held in related litigation, Dr. Makram was identified as the individual whose signature appears on a July 9, 2001 radiograph report. [Affirmation of Elmer Robert Keach, III, ¶ ¶ 4 and 5, Exhibits A and B]. It is apparently the theory of claimant’s case that this radiologist’s report should have alerted medical personnel to Mr. Steinberg’s suffering from sarcoidosis. Accordingly, it would seem to be obvious that some inquiry be had of Dr. Makram concerning her role in claimant’s treatment.

In the affidavit attached to defendant’s opposition papers Dr. Makram writes:
“. . . [t]he basis for my opposition [to the motion seeking to compel her deposition] is that I never have examined or diagnosed claimant at any time or at any place, and therefore, I have no information that would affect the prosecution of his claim.” [Affirmation in Opposition by Jeane L. Strickland Smith, Assistant Attorney General, Exhibit 2, ¶3].
She further writes:
“ The only contact I have had with matters involving the claimant’s medical history consists of . . . [the July report] where it is recorded by my initials and the date ‘7/16/01’ that I compared an X-ray of the claimant’s chest taken on July 9, 2001 with an X-ray of the claimant’s chest taken April 6, 2001 and I concluded, among other things set forth on such Requisition sheet, ‘NO CHANGE SINCE 4-6-01.’ Other than that, my only involvement consisted of the review of documents generated by others in connection with the claimant’s care from May to September 2001 and the occasional renewal of drug prescriptions.

There exists no reason for the Court to order my appearance at a deposition in this matter since the only information I possess that is in any way relevant to this proceeding is already before the Court and is not in dispute.” [Ibid. ¶ ¶ 4 and 5].
Based on the foregoing statements, it would seem that Dr. Makram’s deposition would indeed be likely to elicit material and relevant information with regard to Mr. Steinberg’s claim of negligence and medical malpractice, despite the physician’s assertion that there is “no dispute” concerning information she possesses. The Court is satisfied that while the employees already deposed may have had knowledge with regard to some treatment given to this claimant, and while there is some danger of eliciting cumulative information, Dr. Makram can nonetheless also contribute material and relevant information, within the time cited guidelines for when the depositions of additional witnesses is warranted.

Accordingly, and after careful consideration of all of the foregoing, the motion is granted in part, and it is hereby

ORDERED, that the State produce Mervat Makram for examination before trial on at least ten (10) days notice, at Woodbourne Correctional Facility at such time and place as the parties may agree, and it is further

ORDERED, that the foregoing examination before trial of Dr. Makram be conducted before July 31, 2007 in any event, and it is further

ORDERED, that a Note of Issue be filed by October 1, 2007, given that the time within which to serve and file a Note of Issue as provided by stipulation has expired[4]. No further extensions shall be granted except at a calendar call to be held at the Court’s convenience should Counsel seek such extension.


May 30, 2007
White Plains, New York

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




[1]. “The plaintiff established that the witnesses produced by the Town were insufficient to provide testimonial and documentary evidence that is ‘material and necessary’ to the prosecution of its action, as provided in CPLR 3101(a). Moreover, the plaintiff established a substantial likelihood that the Town official it seeks to depose has knowledge of material issues . . . (citation omitted).”
[2]. Witness already deposed indicated that two other employees had been witnesses to accident and did not see the accident himself. Necessity of additional depositions of at least those two employees established because “(1) . . . the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case . . . (citations omitted).”
[3]. “. . .[W]itness produced by the respondent had inadequate knowledge as to matters bearing on material issues in the case, which knowledge would assist the plaintiffs in preparation for trial. The plaintiffs have also established a substantial likelihood that other employees of the respondent do have such knowledge.”
[4]. The most recent in a series of stipulations extended the time within which to serve and file a note of issue to May 15, 2007.