2. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn
December 11, 2006, with annexed Exhibit A.
Filed papers: Claim filed February 8, 2006; Answer filed March 7, 2006;
Defendant’s Response to Claimant’s Discovery Demands filed May 2,
2006; and Claimant’s Reply to Defendant’s Response to
Claimant’s Discovery Demands filed May 25, 2006.
This is an action for personal injuries arising out of an incident which
occurred on August 8, 2005, when the Claimant allegedly slipped and fell in the
unit mess hall at Gowanda Correctional Facility (Gowanda) where he was
incarcerated, spilling on himself the pan of hot vegetables he was carrying. As
a result, Claimant sustained burns on his left arm, stomach and back, back
strains, and discoloration of the skin on his arm, stomach and back.
In April of 2006, Claimant served Defendant with a request for the production
of documents (Defendant’s Exhibit A).
Defendant’s response (Claimant’s Exhibit B) was filed on May 2,
2006. In response, Defendant produced certain documents and generally objected
to Claimant’s demands as being overly broad and burdensome. Claimant
replied to Defendant’s response by stating that his demands were not
overly broad or burdensome (Claimant’s Exhibit C). A series of
correspondence then ensued between the parties with Claimant demanding further
responses, Defendant suggesting that Claimant address its objections, and
Claimant alleging that he had “revised his demand in more of a specific
time frame” (see Claimant’s Exhibits D and
Claimant now moves the Court for an order
compelling further responses to his April 25, 2006 discovery demand.
The Court has broad discretion in controlling the discovery process and is
guided by the test of “usefulness and reason” (see McMahon v
Aviette Agency, Inc., 301 AD2d 820, 821 ). Utilizing these guiding
principles, the Court will review each of Claimant’s demands.
Initially, the Court notes that Defendant has provided Claimant with a copy of
the documents requested in demand # 7. No further response to this demand is
necessary. Similarly, no further response to Claimant’s demands # # 3, 4
and 5 is necessary. These demands seem to request copies of grievances,
complaints, memorandums and other documents regarding training of officers or
physical injuries that occurred at Gowanda. The Court agrees with Defendant that
these demands are overly broad and burdensome and in no way seek relevant
With respect to Claimant’s demands # # 6 and 8, however, it is difficult
to understand what documents Claimant is seeking. Assuming that Claimant is
seeking a complete copy of his medical records, then it should be noted that
Claimant was injured on August 8, 2005, and that copies of relevant portions of
his ambulatory health records were attached to the claim as filed, evidencing
the fact that Claimant had copies of a portion of his medical records in
February of 2006 when he filed his claim. The court will not deny Claimant,
however, access to his medical records, with the understanding that medical
records unrelated to Claimant’s alleged injuries of August 8, 2005 will
not be admissible at trial and with the further understanding that Defendant is
permitted to charge a reasonable fee, usually $.25 per page, for providing these
records (see Williams v State of New York
, Ct Cl, November 1, 2004,
Collins, J., Claim No. 108324, Motion No. M-68918, UID #
At this point, Defendant need
do nothing further. Claimant, however, should advise Defendant as to the dates
of the medical records he wishes and/or if he wishes a copy of all of his
medical records. When Claimant has isolated and itemized the medical records he
wants, Defendant will advise Claimant as to the number of pages involved and the
cost of providing those records. Defendant will provide Claimant with copies of
the medical records demanded after Defendant receives payment of the reasonable
Insofar as Claimant’s demands # # 6 and 8 can be interpreted as
requesting copies of his medical records from any outside facilities or from
specialists or other medical providers not affiliated or employed by the State
of New York, then Claimant must once again advise Defendant exactly what records
he is seeking. Once Claimant has isolated and relayed to Defendant the medical
records from outside facilities or doctors, then Defendant is to advise Claimant
if it is in possession of any of the requested material and the reasonable cost
of providing copies to Claimant. If Defendant is not in possession of these
records, then Claimant should seek this information directly from the outside
facilities and doctors (see Harrison v State of New York, Ct Cl, February
17, 2006, Marin, J., Claim No. 109913, Motion No. M-70942, UID # 2006-016-011).
Demands # # 1 and 2, however, seem to be requesting information which may be
relevant and necessary to the prosecution of this claim. The problem with these
demands is that they seek information over an overly broad time period of more
than twelve years and even seek information after the subject incident occurred.
The Court will, therefore, limit the breadth of these two demands to a period
from August of 2003 through August 8, 2005, the date of the incident. With this
time limitation, Defendant is to provide Claimant with further responses to
demands # # 1 and 2.
Accordingly, Claimant’s motion to compel discovery M-72647 is granted in
part and denied in part as set forth above.