|Claimant(s):||DEBORAH SZMANIA, Individually and
as Mother and Natural Guardian of
JENNIFER SZMANIA and MICHAEL
|Claimant short name:||SZMANIA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Lipsitz Green Scime Cambria LLP
By: Michele A. Braun, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 5, 2009|
|Official citation:||82 AD3d 1688 (2011)|
|See also (multicaptioned case)||2008-037-042|
Claimant David Szmania in claim no. 111596(1) seeks money damages for personal injuries he allegedly sustained 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. Claimants have sought to compel Defendant to produce copies of all reports prepared by Defendant or its representatives which relate to this incident. Defendant has opposed this application on the ground that such reports are protected from disclosure under Education Law § 6527 (3), and by reference therein, Mental Hygiene Law § 29.29. In its original decision and order,(2) the Court noted that reports 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 reports prepared pursuant to Mental Hygiene Law § 29.29, are precluded from disclosure. The Court further noted, however, that not all records prepared and maintained by a facility would derive from its medical review, quality assurance and investigation functions. The Court therefore ordered Defendant to produce for an in camera review all records referencing the May 18, 2005 incident. Now after reviewing the reports submitted by Defendant, the same documents subsequently redacted by Defendant, and after further conferences with counsel for the parties, the Court makes the following order.
Defendant has turned over a document entitled "Reportable Incident," together with addenda to this form. These reports will be redacted in part and turned over to Claimants' counsel. The portions of these reports that have been redacted fall within the constraints against disclosure mandated by Education Law § 6527 (3) and Mental Hygiene Law § 29.29. In addition, Defendant has turned over documents entitled "Allegation of Abuse Reporting Form," "W.N.Y.D.D.S.O. Incident Report Notification Form," and "Western New York Risk Management Plan," together with memoranda relating to these documents. The Court has reviewed these documents carefully and concludes that they are precluded from disclosure pursuant to the Education and Mental Hygiene Laws.
The documents herein determined to be subject to disclosure will be delivered to Claimants' counsel at a conference to be scheduled by the Court.
January 5, 2009
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims
1. Counsel has advised that claim no. 111595 commenced on behalf of the infant Claimants will be discontinued.
2. The papers submitted in connection with Claimants' initial motion M-73723 and Defendant's cross-motion CM-73862 to compel discovery are deemed a part of this supplemental Order.