New York State Court of Claims

New York State Court of Claims

PSOINAS v. THE STATE OF NEW YORK, #2008-033-291, Claim No. 112763, Motion No. M-73814


Synopsis



Case Information

UID:
2008-033-291
Claimant(s):
ROBERT PSOINAS, as Administrator of the Estate of CHARLES J. PSOINAS, JR. and ROBERT PSOINAS, as Representative of the Heirs and Distributees of CHARLES J. PSOINAS, JR.
Claimant short name:
PSOINAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112763
Motion number(s):
M-73814
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Levine & GrossmanBy: Michelle F. Laskin, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Denis J. McElligott, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 25, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is a claim brought by Robert Psoinas (hereinafter “claimant”), as the Administrator of the Estate of Charles J. Psoinas, Jr. (hereinafter “decedent”) and Robert Psoinas, as Representative of the Heirs and Distributees of Charles J. Psoinas, Jr., for the wrongful death of decedent based upon the alleged negligence of the State of New York (hereinafter “defendant”). The alleged negligence occurred on January 22, 2006, at the Garden Place Community Residence, West Hempstead, New York.


Decedent was a resident of the Garden Place Community Residence, which is a facility for mentally handicapped and developmentally disabled people. On January 22, 2006, decedent was attacked and stabbed by Derrick Smith (hereinafter “Smith”), another resident of the facility.

Claimant turns to the Court for help in discovery[1]. Claimant asks the Court for:
  1. so-ordered subpoena for the Nassau County Police Department investigation materials in regard to the death of decedent;
  1. an order permitting claimant to obtain the medical and psychiatric records of Derrick Smith for the five year period prior to January 22, 2006; and
  1. a so-ordered subpoena and/or an order allowing claimant to obtain all investigative reports conducted by the State of New York's Commission on Quality of Care & Advocacy for Persons with Disabilities.

In response to claimant’s motion, defendant responds that it takes no position on the Court’s issuance of a so-ordered subpoena for the Nassau County Police Department’s records. Defendant objects to the release of Smith’s record on the basis that there is no indication that Smith, a criminal defense attorney, or Mental Hygiene Legal Services were served with a copy of this motion.[2]

CPLR 2307, in pertinent part, states:
A subpoena duces tecum to be served upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of any books, papers or other things, shall be issued by a justice of the supreme court in the district in which the book, paper or other thing is located or by a judge of the court in which an action for which it is required is triable. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day's notice to the library, department, bureau or officer having custody of the book, document or other thing and the adverse party. Such subpoena must be served upon such library, or such department or bureau of such municipal corporation or of the state or an officer having custody of the book, document or other thing and the adverse party at least twenty-four hours before the time fixed for the production of such records unless in the case of an emergency the court shall by order dispense with such notice otherwise required. (emphasis added).

The Court notes that claimant has attached to his papers a copy of the subpoena he wishes to be so-ordered. However, there is no indication in claimant’s papers nor is there an affidavit of service that the Nassau County Police Department was given notice of this motion pursuant to CPLR 2307. Claimant cites no emergency which would dispense with the notice requirement. The Court denies claimant’s application for a so-ordered subpoena of the Nassau County Police Department’s records relevant to this claim at this time. Claimant may make another application for a so-ordered subpoena pursuant to CPLR 2307.

It appears that the only opposition defendant had to the production of Smith’s records has been satisfied, as his attorney has been put on notice of the instant motion. Smith’s attorney, Mr. Kunken, strenuously objects to the release of the records on his behalf.[3] Smith indicates that he has not given consent to the release of his records and, therefore, they may not be disclosed (CPLR 4504). Smith argues that he has not given consent or waived any privilege attached to the records.

It is claimant’s position that regardless of Smith’s objections, the Court can order their release pursuant to Mental Hygiene Law §33.13.

CPLR 4504, in relevant part states:
Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

The relationship between Smith and defendant’s doctors are included in this privilege (CPLR 4504).

A waiver by Smith does not have to be expressly stated. The waiver may be implied if Smith uses his medical history in his own defense by either using the records or eliciting expert testimony about his history. Smith argues that no waiver, express or implied, has been made.

In Webdale v North General Hospital, 7 Misc 3d 947, aff’d 24 AD3d 153, Kendra Webdale was pushed into the path of an oncoming subway train by Andrew Goldstein. Mr. Goldstein had a long history of mental illness. Ms. Webdale’s estate was suing numerous institutions that had treated Goldstein through the years. Goldstein would not agree to expressly waive the privilege. Plaintiff argued that Goldstein’s medical records were used at his criminal trial and constituted a waiver of the privilege in further trials. The physical records were not put into evidence. However, experts testified to Goldstein’s history with information culled from those records. Citing Dillenbeck v Hess, 73 NY2d 278, 284, stated “ ‘the form in which the information is sought to be introduced is irrelevant, as the privilege operates whether the information is contained in a patient's medical files or is sought to be introduced at trial in the form of expert testimony’ ” (Webdale at 955).

In the instant matter, Smith argues that he has not waived the confidential nature of the records. As previously mentioned, Smith has not been tried on the criminal charges because he has been adjudicated incompetent. Claimant makes no showing as to what records or testimony were used in Smith’s competency hearing. Without such evidence, this Court cannot rule that Smith waived the privilege of the records.

Mental Hygiene Law §33.13(c)(1) states:
Such information about patients or clients reported to the offices, including the identification of patients or clients, clinical records or clinical information tending to identify patients or clients, and records and information concerning persons under consideration for proceedings pursuant to article ten of this chapter, at office facilities shall not be a public record and shall not be released by the offices or its facilities to any person or agency outside of the offices except as follows:


1. pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality, provided, however, that nothing herein shall be construed to affect existing rights of employees in disciplinary proceedings.

Despite Smith’s non-waiver of the privilege attached to his records, this Court has the discretion to order the release of his records to claimant. To exercise that discretion, there must first be a finding the “interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law §33.13(c)(1)).

In Exelbert v State of New York, 140 AD2d 665, claimant was assaulted by a nonparty patient under the care of defendant. Claimant sought the medical records of the nonparty. The Court of Claims ordered redacted records be provided to claimant. The Appellate Division held that claimant failed to show that the interests of justice significantly outweighed the need for confidentiality. Claimant’s intent to expand her theory of liability provided no basis to order the disclosure of the records.

In the instant matter, claimant has made no showing that the interests of justice significantly outweigh the need for confidentiality. Claimant makes conclusory statements that it wants records and it relies on Mental Hygiene Law §33.13 for obtaining them. The Court denies claimant’s motion for an order for the production of medical and psychiatric records of Derrick Smith for the five year period prior to January 22, 2006.

Lastly, claimant seeks a so-ordered subpoena and/or an order allowing claimant to obtain all investigative reports conducted by the State of New York’s Commission on Quality of Care & Advocacy for Persons with Disabilities. Defendant states that this portion of claimant’s motion is moot. According to defendant, claimant, as a family member, has been provided with a redacted copy of the report sought.[4] The Court will rely on defendant’s representation and deny this portion of claimant’s motion as moot, subject to claimant’s objections.

Based upon the foregoing claimant’s motion is denied.


June 25, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on claimant’s motion: Notice of Motion dated July 31, 2007 and filed August 3, 2007; Affirmation in Support of Michelle F. Laskin, Esq. with annexed Exhibits dated July 30, 2007 and filed August 3, 2007; Affirmation of Denis J. McElligott, Esq. dated September 27, 2007 and filed September 28, 2007; Affirmation in Further Support of Michelle F. Laskin, Esq. dated October 8, 2007 and filed October 11, 2007; Affirmation in Opposition of Stephen Kunken, Esq. dated December 5, 2007 and filed December 14, 2007.
[2].After defendant served its opposition to claimant’s motion, claimant served a copy of the motion on Stephen Kunken, Esq., Smith’s criminal attorney. Mr. Kunken has appeared on behalf of Smith and submitted opposition papers to claimant’s motion.
[3]. The Court notes that Mr. Kunken has indicated in his papers that Smith has been adjudicated incompetent (CPL 730 et seq.) to assist in his own defense or to appreciate the nature of the charges against him. Thus, it is unclear to this Court if Smith was able to offer any guidance or assistance to Mr. Kunken in regard to opposition or consent in the instant matter. All future references to Smith’s opposition recognize that the opposition was interposed by Mr. Kunken on behalf of Smith.
[4].Defendant indicates that the report and cover letter are attached as an exhibit, however the copy of defendant’s affirmation the Court has does not have an exhibit attached.