New York State Court of Claims

New York State Court of Claims

SZMANIA v. STATE OF NEW YORK, #2007-037-048, Claim No. 111595, Motion Nos. M-73723, CM-73862


Synopsis


Case Information

UID:
2007-037-048
Claimant(s):
DEBORAH SZMANIA, Individually and
as Mother and Natural Guardian of
JENNIFER SZMANIA and MICHAELSZMANIA, Infants
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
SZMANIA
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111595
Motion number(s):
M-73723
Cross-motion number(s):
CM-73862
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Lipsitz Green Scime Cambria LLPBy: Michele A. Smith, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 1, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2007-037-049


Decision

The following were read and considered with respect to Claimants’ motion to compel discovery (M-73723) and Defendant’s cross-motion to compel discovery (CM-73862):
1. Claimants’ notice of motion and supporting affirmation of Michele A. Smith, Esq.

affirmed June 27, 2007, with annexed exhibits A-M;

2. Defendant’s notice of cross-motion and affidavit of Assistant Attorney General

William D. Lonergan in opposition to Claimants’ motion and in support of Defendant’s cross-motion sworn to August 14, 2007, with annexed exhibit A;[2]

3. Claimants’ reply affirmation of Michele A. Smith, Esq. affirmed August 17, 2007,

with annexed exhibits A-B;

4. Letter from Assistant Attorney General William D. Lonergan dated September 14,

2007 and received by the Court on September 17, 2007;

5. Follow-up letter from Assistant Attorney General William D. Lonergan also dated

September 14, 2007 but received by the Court on September 26, 2007;

6. Letter from Claimants’ counsel Michele A. Smith, Esq. dated September 25, 2007;

7. Letter from Assistant Attorney General William D. Lonergan dated October 4, 2007.


Filed papers for Claim Number 111595: Notice of Claim filed November 7, 2005; Answer filed January 17, 2006; Defendant’s Demand for Bill of Particulars, Notice for Discovery and Inspection, Demand for Collateral Sources, Demand Pursuant to CPLR 3101(d) and Notice for Examination Before Trial filed January 17, 2006; Claimants’Cross Notice for Examination Before Trial filed January 17, 2006; Claimants’ Demand for Bill of Particulars and Demand for Statements, Witnesses, Photographs, Insurance Coverage, Expert Information, Accident Reports and Surveillance Materials filed February 27, 2006; Claimants’ Verified Bill of Particulars filed March 10, 2006; Defendant’s Verified Bill of Particulars filed March 22, 2006 and Defendant’s Response to


Claimants’ Demand for Statements, Witnesses, Photographs, Insurance Coverage, Expert Information, Accident Reports and Surveillance Materials filed March 22, 2006.

Filed papers for Claim Number 111596: Notice of Claim filed November 7, 2005; Answer filed January 17, 2006; Defendant’s Demand for Bill of Particulars, Notice for Discovery and Inspection, Demand for Collateral Sources, Demand Pursuant to CPLR 3101(d) and Notice for Examination Before Trial filed January 17, 2006; Claimants’ Cross Notice for Examination Before Trial filed January 17, 2006; Claimants’ Demand for Bill of Particulars and Demand for Statements, Witnesses, Photographs, Insurance Coverage, Expert Information, Accident Reports and Surveillance Materials filed February 27, 2006; Claimants’ Verified Bill of Particulars filed March 10, 2006; Defendant’s Verified Bill of Particulars filed March 22, 2006; Defendant’s Response for Statements, Witnesses, Photographs, Insurance Coverage, Expert Information, Accident Reports and Surveillance Materials filed March 22, 2006; and Defendant’s Demand for Employment Records and Tax Returns filed July 31, 2006.
Claimant David Szmania[3] seeks money damages for personal injuries he allegedly sustained at approximately 6:57 pm on May 18, 2005 when he was attacked near his home by a resident of the West Seneca Developmental Center, a facility operated by the New York State Office of Mental Retardation and Developmental Disabilities in West Seneca, New York. Mr. Szmania contends that Defendant was negligent in its failure to properly restrain and supervise the assailant and to maintain adequate security for his protection.
After several conferences (22 NYCRR 206.8[b]), counsel for the parties were unable to resolve their differences related to discovery and Claimant’s attorney now moves for an order compelling the production of documents and certain witnesses employed by the State in order that they may be deposed. The State opposes the motion and cross-moves for an order pursuant to CPLR 3124 compelling the production of Claimant’s employment and income records.

Claimant seeks an order compelling responses to the following demands for document production:
“(1) Copies of all STATEMENTS, whether signed or otherwise, including but not limited to, all written, audio-taped, videotaped or oral statements, including any transcripts or memorandum or other records thereof, actually or allegedly made by or taken from the claimant, both prior and subsequent to the accident or incident which is the subject of this action, or a response that you have no such statements.”
●●●
“(5) Copies of any and all WRITTEN REPORTS prepared by [Defendant] and/or its agents, servants, employees, concerning the occurrence which is the subject of this litigation, including, but not limited to, any internal reports or reports prepared by [Defendant] and/or its agents, etc., as part of the regular course of business operation or practice of the [Defendant] and including copies of any MV-104 (CPLR 3101[g]).”
Defendant has objected to both demands on the ground that the information sought is protected from disclosure under Education Law § 6527(3), and by reference therein, Mental Hygiene Law § 29.29. Those statutes, when read together, preclude discovery of records relating to medical review and quality assurance functions of an institution and 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). Included in such reports are any allegations of violent behavior exhibited by either patients or employees (see Katherine F. v State of New York, 94 NY2d 200, 204-205 [1999]). However, not all records prepared and maintained by a facility would derive from its medical review, quality assurance and investigation functions, and thereby be exempt from disclosure. 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. Therefore, all records referencing the incident occurring on or about May 18, 2005 shall be subject to an in camera review by the Court in accordance with the guidelines set forth in Brier v State of New York, 95 AD2d 788 [1983] after which the Court will determine what portions, if any, are subject to disclosure and direct the Defendant accordingly (see Sohan v Long Is. Coll. Hosp., 282 AD2d 597 [2001]).

Claimant’s motion, however, to compel Defendant to produce copies of statements is denied as moot. According to Assistant Attorney General William D. Lonergan in his two letters both dated September 14, 2007, Defendant is not in possession of any statements made by the Claimants.
Claimant’s motion also seeks judicial intervention regarding the production of certain witnesses employed by the State for deposition. The Cross Notice for Examination Before Trial (Claimant’s Notice of Motion, Exhibit F) simply requests testimony from agents, servants and/or employees of the State “having knowledge of the facts placed in issue” without identifying anyone by name, job title or position. Counsel for Defendant counters that Claimant should identify with specificity, either by name or subject matter, the areas of inquiry in order that Defendant may ascertain the appropriate witnesses to produce (see Defense Counsel’s Affidavit, paragraph “22"). On this record the Court cannot determine that the testimony of any particular individual might be relevant, material and necessary to the prosecution of this claim and therefore denies, without prejudice, Claimant’s request for an order directing the Defendant to produce the “most knowledgeable representative of defendant” concerning the incident which is the subject of this claim. If necessary, attorneys for Claimant may renew their application after determining with some specificity the names, job titles or positions of the persons they wish to depose.

It appears from the papers before the Court that Claimant is also seeking an order requiring Defendant to produce the West Seneca Developmental Center file for the alleged assailant and Defendant has objected on the ground that medical records maintained by the Office of Mental Retardation and Developmental Disabilities are confidential and privileged. Since there has been no formal demand for the records, Claimant’s counsel raises the issue in the context of the Cross Notice for Examination Before Trial which directs the person to be examined [by Claimant] to produce “[a]ny and all documents, memoranda, correspondence, etc. in the possession, custody and control of defendants which relate to the matters upon which examination will be made, to be marked as exhibits and used on examination,” suggesting that this includes the West Seneca Developmental Center file for the assailant who is not a party to this action. To the extent that this can be considered a demand for the assailant’s records, the Court will deny Claimant’s request without prejudice to the service of a proper demand with sufficient specificity to assist Defendant in framing a response.

Finally, by way of cross-motion, Defendant seeks to compel disclosure of employment and income tax records for Claimant and Deborah Szmania. In her reply affirmation, Claimant’s attorney states that an employment record authorization and copies of wage and tax statements for the years 2000-2007 will be provided to Defendant, but objects to producing Claimants’ income tax returns. The court will direct Claimant to produce the aforementioned documents but will not order disclosure of Claimants’ tax returns at this time. Since disclosure of tax returns is disfavored because of their confidential and private nature, the party seeking disclosure must demonstrate that the information contained in the returns is not available from other sources (Williams v New York City Hous. Auth., 22 AD3d 315 [2005]). Defendant has not shown its inability to obtain the information from other sources.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Claimant’s motion to compel Defendant to produce certain documents in its possession related to its investigation of the incidents surrounding the alleged assault on Claimant which occurred on May 18, 2005, is granted to the extent that Defendant is directed to deliver such incident reports to the Court for an in camera review within forty-five (45) days of the filing date of this order; and it is further

ORDERED, that Claimant’s motion to compel Defendant to produce statements of the Claimants is denied as moot; and it is further

ORDERED, that Claimant’s motion to compel Defendant to produce the most knowledgeable representative for deposition is denied, without prejudice; and it is further

ORDERED, that Defendant’s cross-motion to compel Claimant to produce employment and income records is granted to the extent that Claimant is directed to produce an employment record authorization and copies of his W-2 wage and tax statements for years 2000-2007.


November 1, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2]. While allegedly supporting a cross-motion for discovery, Assistant Attorney General Lonergan’s affidavit was filed alone on August 16, 2007. Apparently recognizing his error, a notice of cross-motion was subsequently forwarded and filed on August 20, 2007.
[3].The claims of Deborah Szmania are derivative in nature and the claims of Jennifer Szmania and Michael Szmania are for psychological injuries resulting from witnessing the alleged assault upon David Szmania. Unless otherwise indicated or required by context, the term “Claimant” shall refer to David Szmania.