New York State Court of Claims

New York State Court of Claims

WHYTE v. THE STATE OF NEW YORK, #2007-044-520, Claim No. None, Motion No. M-72731


Attorney's motion for pre-action disclosure of name of next-of-kin of decedent inmate denied where the motion papers contain no evidence of attorney-client relationship, no facts which could form the foundation for a prima facie case, and no indication of any attempt to ascertain the information from any other source.

Case Information

In the Matter of the Application of NEVILLE WHYTE for an Order pursuant to CPLR Section 3102 [c]
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:
ANDREW F. PLASSE, P.C. BY: Andrew F. Plasse, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 21, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Attorney Andrew F. Plasse filed this motion for pre-action disclosure to obtain information from Elmira Correctional Facility (Elmira), specifically the name of the next of kin of Neville Whyte (the decedent), who died while incarcerated. Defendant opposes the motion.

Attorney Plasse states that the decedent, while he was incarcerated at Elmira, contacted him “about a cause of action concerning improper medical treatment to his arm which he alleged was swollen for months.” The decedent enclosed photographs in which it appears that his right arm is significantly larger than his left arm.[1] Attorney Plasse states that he was not able to follow up on the matter with the decedent before his death and argues that the information sought is material and necessary in order to have an administrator or executor appointed to prosecute a “potential claim” against defendant.

Defendant contends that the motion is deficient for several reasons, including the lack of evidence to establish an attorney-client relationship and the lack of a certificate of merit for a cause of action sounding in medical malpractice.

The Court may authorize pre-action disclosure pursuant to CPLR 3102 (c) where the movant has shown facts which indicate the existence of a prima facie cause of action against the defendant and has demonstrated that the information sought is “material and necessary” to the action (see Matter of Merck-Medco Managed Care v Value Health., 254 AD2d 519, 520 [1998]). The facts alleged should be based on first-hand knowledge evidence and viewed in the light most beneficial to the movant, giving him or her the benefit of every favorable inference which can reasonably be drawn (Matter of Ero v Graystone Materials, 252 AD2d 812, 814 [1998]).

First, Attorney Plasse did not follow up on the potential claim with the decedent. Moreover, he has not provided any documentation from which the Court could infer the existence of an attorney-client relationship. Additionally, the moving papers do not contain any facts which could establish a prima facie cause of action in medical malpractice. Attorney Plasse offers nothing more than his conjecture that defendant’s treatment may have deviated from the appropriate standard of care, because one of his arms was swollen. Finally, Attorney Plasse has provided no evidence that he made any attempt to derive the information sought from any other source. In reality, this motion seeks pre-action disclosure in order to initiate a preliminary process to gather information which in turn might assist in determining whether the decedent had a cause of action.

This motion does not satisfy the requirements of CPLR 3102 (c) and, therefore Motion No. M-72731 is denied (cf. Matter of Taylor, 143 Misc 2d 259 [1989] [where the lack of an affidavit of merit was not fatal to plaintiff’s application for pre-action disclosure of her medical records, which were withheld in violation of Public Health Law § 18 (2) (a)]).

March 21, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on the motion for pre-action disclosure:

  1. Notice of Motion for Discovery to Frame a Claim filed on December 26, 2006, Affirmation of Andrew F. Plasse, Esq. dated December 8, 2006, and attached Exhibits A and B.
  1. Affirmation in Opposition of Belinda A. Wagner, AAG, dated January 17, 2007.

[1]. Exhibit A to the motion papers received by the Court contains photocopies of two pictures allegedly taken September 30, 2004. A copy of the decedent’s inmate information (taken from the Department of Correctional Services’ Website) is attached thereto as Exhibit B. Assistant Attorney General Belinda A. Wagner affirms in her responding papers that the motion papers served on the Attorney General’s Office did not contain either exhibit.