4,5 Filed papers: Claim, Answer
Theodore Cantey alleges in his claim that on September 18, 2006
defendant’s agents caused him to trip, fall and suffer personal injuries
because of their negligent failure to utilize proper techniques for escorting an
individual who is rear hand-cuffed. Specifically, when a court officer escorted
Mr. Cantey - who was rear hand-cuffed at the time - to a court appearance from
the holding area, he tripped and fell on the first of three to four steps,
receiving a contusion on the right side of his eye.
Although the motion papers are not very specific, in this motion claimant
appears to be seeking copies of documents from Manhattan Detention Center, New
York City Health and Hospitals, and Striver House. [Affidavit in Support of
Motion by Theodore Cantey, Claimant]. The only document specified, however, is
an “injury report,” which he claims had been previously sought from
defendant. [See id. ¶¶ 3,4].
Claimant’s notice of motion contains additional statements suggesting
that he seeks medical records from “Striver’s House/Medical Dept.
202 Edgecombe Avenue, New York, NY 10030”, but production of same is not
addressed in the affidavit he submitted, nor is it clear when and if claimant
was treated there for any injuries associated with this accident.
Moreover, if claimant is asking the court to issue subpoenas to any of these
entities that are not parties to the action he must prepare a subpoena for the
court that sets forth the information required by Civil Practice Law and Rules
§3101(a)(4). That section provides in pertinent part: “. . . There
shall be full disclosure of all matter material and necessary in the prosecution
or defense of any action, regardless of the burden of proof, by: . . . any other
person [i.e.: a non-party], upon notice stating the circumstances or reasons
such disclosure is sought or required.”
The court notes that disclosure in the form of a deposition from a nonparty is
available only upon a showing of “special circumstances”, whereas
document disclosure requires that a more minimal showing of
“circumstances” be set forth. Whether special circumstances exist
is not established by merely declaring that the information sought is material
or relevant. They may be shown by establishing, for example, that evidence has
been destroyed, or that some other “. . . unique factual situation exists
. . . (citation omitted)” [see Brooklyn Floor Maintenance
Co. v Providence Washington Ins. Co., 296 AD2d 520, 521 (2d Dept 2002)] and
that the information sought cannot be obtained from other sources. Dioguardi
v St. John's Riverside Hosp., 144 AD2d 333, 334-335 (2d Dept 1988). With
regard to the “circumstances or reasons such disclosure is sought or
required”, it would seem that claimant must show that the information is
material and relevant, i.e.: the usual disclosure requirement. See
generally Civil Practice Law and Rules §3101 (a).
If what claimant is looking for are medical records concerning his own
treatment, he might make direct inquiries to these entities, inquire about the
cost for copying such records, and obtain them directly. If court intervention
is sought, he must establish at least materiality and relevance to obtain
disclosure from non-parties, in addition to furnishing the cost information,
since the third party need not supply records without claimant’s payment
Defendant indicates the State of New York Unified Court System Aided Report
dated September 19, 2006 generated after claimant’s accident was provided
to claimant with earlier correspondence - a copy is attached as an exhibit
herein - and that this motion is moot, therefore, as it relates to the State of
New York. [See Affirmation by John M. Hunter, Assistant Attorney General,
¶¶3, 4; Exhibit A]. The court agrees.
Accordingly, since this appears to be the document claimant was seeking, and
since it also appears to be the only document over which defendant has control,
the claimant’s motion is therefore denied as moot.