New York State Court of Claims

New York State Court of Claims

CRISTINO v. THE STATE OF NEW YORK, #2008-033-314, Claim No. 111236, Motion Nos. M-74788, CM-74900


Synopsis



Case Information

UID:
2008-033-314
Claimant(s):
JEFFREY R. CRISTINO, by his Natural Mother and Legal Guardian, THERESA A. CRISTINO, and THERESA A. CRISTINO, Individually
Claimant short name:
CRISTINO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111236
Motion number(s):
M-74788
Cross-motion number(s):
CM-74900
Judge:
James J. Lack
Claimant’s attorney:
Kenneth J. Ready & Assoc.By: Kenneth J. Ready, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Steven Kletzkin, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 26, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for medical malpractice for alleged injuries to Jeffrey R. Cristino by his Natural Mother and Legal Guardian, Theresa A. Cristino, and Theresa A. Cristino, Individually (hereinafter “claimant”). The alleged medical malpractice occurred on March 21, 2000, at Stony Brook University Hospital (hereinafter “Hospital”), Stony Brook, New York.

Defendant moves this Court for an order compelling discovery of the academic records of claimant’s siblings[1]. Defendant contends that the records are necessary to determine if the cognitive difficulties the infant claimant is encountering are inherited or congenital.


Claimant opposes defendant’s motion as unsupported and an invasion of the privacy of the records of the infant claimant’s siblings.

There is no privilege attached to academic records, rather the question that must be asked is whether or not the records are relevant (Baldwin v Franklin Gen. Hosp., 151 AD2d 532). A conclusory allegation by a party in and by itself is insufficient to demonstrate the records’ relevance. Counsel must put forth an explanation as to the records’ relevance by an expert (Scipio v Upsell, 1 AD3d 500).

Claimant cross-moves this Court for an order striking defendant’s answer for failure to comply with discovery or, in the alternative, compelling defendant to provide the discovery demanded[2]. Claimant demanded certain protocols in its notice for discovery and inspection. Claimant indicates rather than the protocols for the doctors, he received the nursing protocols. Thereafter, claimant wrote to defendant to explain that the protocols received were not what was sought. Claimant received no response to this letter until after the instant motion was filed.

In opposition, defendant argues that the actual department was not specified and thus, defendant had adequately answered claimant’s notice for discovery. As to claimant’s subsequent letter, defendant indicates that it did not comply with any of the enumerated methods for obtaining disclosure within CPLR Art. 31.[3]

CPLR 3122(b) states:
Whenever a person is required pursuant to such a notice, subpoena duces tecum or order to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required by the notice, subpoena duces tecum or order to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document for a subpoena duces tecum.

Defendant must now be hoisted on its own petard. Defendant’s response, in letter form, to claimant’s initial notice for discovery, is also not something that is enumerated within the CPLR. By defendant’s opposition to claimant’s motion, it was aware of other documents that could have fallen within those subjects requested by claimant. Defendant has a responsibility not to hamper discovery by providing documents within a category piecemeal. Such an approach can only lead to judicial intervention. Rather, defendant, as the CPLR requires, should produce the various documents or provide a legitimate objection.

Since this was not done by defendant, and more than 20 days has passed [CPLR 3122(a)], defendant is directed to provide a formal response to claimant’s initial notice of discovery and inspection without objection. Defendant shall provide, in written form, whatever policies, procedures, rules and/or regulations are relied upon by medical doctors at the Hospital (regardless of status as attending or resident).

Based upon the foregoing, defendant’s motion for an order seeking an authorization to obtain the academic records of claimant’s siblings is denied. Claimant’s motion to compel discovery is granted.


September 26, 2008
Hauppauge, New York

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




[1].The following papers were read and considered on defendant’s motion: Notice of Motion dated April 8, 2008 and filed April 9, 2008; Affirmation in Support of Steven C. Kletzkin, Esq. with annexed Exhibits A-E dated April 8, 2008 and filed April 9, 2008.
[2].The following papers were read and considered on claimant’s motion: Notice of Cross-Motion dated April 25, 2008 and filed May 2, 2008; Affirmation in Opposition and in Support of Cross-Motion of Kenneth J. Ready, Esq. with annexed Exhibits A-C dated April 25, 2008 and filed May 2, 2008; Affirmation in Opposition of Steven C. Kletzkin, Esq. with annexed Exhibits A-C dated May 27, 2007 [sic] and filed May 29, 2008; Affirmation in Opposition and in Support of Cross-Motion of Kenneth J. Ready, Esq. with annexed Exhibit D dated June 6, 2008 and filed June 9, 2008.
[3].The Court notes that this tact is a departure from the usual cooperation of defendant’s office.