New York State Court of Claims

New York State Court of Claims

PAYTON v. THE STATE OF NEW YORK, #2008-040-019, Claim No. 111384, Motion No. M-74489


Claimant’s motion to compel production of incident/accident report or affidavit of person detailing search was made and no report exists granted.

Official Citation:
21 Misc 3d 1143[A]

Case Information

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:
BAUMAN, KUNKIS & OCASIO-DOUGLAS, P.C.By: Randolph D. Janis, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Daniel Chu, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 4, 2008

Official citation:
21 Misc 3d 1143[A]
Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Claimant’s motion is granted for an order directing Defendant to produce: (1) any accident report/incident report maintained by Defendant that pertains to Claimant’s September 24, 2004 incident; or, in the alternative (2) an affidavit from Risk Management detailing the search made and that no report exists or existed.

The Claim alleges that on September 24, 2004 between 4:00 a.m. and 6:30 a.m., Claimant, who was a patient at Stony Brook University Hospital and Medical Center, fell out of bed causing her to sustain serious and permanent personal injuries as a result of Defendant’s negligence and medical malpractice.

On November 13, 2007, a deposition was conducted of Donald C. Johnson, Jr., R.N., the nurse who found Claimant after her fall.

Mr. Johnson testified that he prepared a note contained in the hospital record. He stated:
Q. Would you be kind enough to slowly read what you wrote there, and I ask slowly, because the court reporter needs to type what you are saying.

A. Right. “Patient heard to fall on the floor. Patient states she is uncertain how she fell” – that OOB is “out of bed. Patient noted to have leg weakness. Dr. Moore in to see the patient.”

Q. At the bottom of the page where it says “signature-title,” is that your signature?

A. Yes, it is.
(Ex. I [Deposition Transcript] attached to Motion, p. 20).

He further testified:
Q. Were you ever asked by the hospital to make any type of writing that pertained to this incident, whether it be an incident report or anything else?

A. Generally, when a fall occurs we do an incident report.

Q. Do you have any reason to believe that you would have departed from that general custom in this case, sir?

A. No.

MR. CHU: Objection to the question.

Q. Do you have an independent memory of generating such a report in this case?

A. No, I don’t.

Q. Back in 2004, if an incident report was made, to whom would it be furnished after it was written? Whom would you give it to?

A. To the nurse-manager.

Q. Who was the nurse-manager back at that time?

A. Allison Copenhaver.
(Id., pp. 21-22).

In a Notice for Discovery and Inspection dated October 25, 2005, Claimant requested a copy of any accident/incident report pertaining to treatment rendered to Claimant (Ex. F attached to Motion). In Defendant’s Response dated December 30, 2005, Defendant objected to the Demand for incident reports “to the extent that it calls for the disclosure of material to the extent that it exists, protected by Public Health Law § 2805-m and Education Law § 6527(3). Notwithstanding this objection, and without waiving it, the defendant is not in possession, custody or control of any responsive document” (Ex. G attached to Motion).

The Court has held two telephone conferences with the parties regarding this matter, including one conducted by the Court’s principal law clerk. In both cases, Defense counsel told the Court that he had been advised there is no incident report. Yet, he has declined to provide an affidavit from a person with direct knowledge of this information. At the conference held with counsel on December 18, 2007, the Court allowed Claimant to make the instant motion to compel.

“It is well settled that a trial court is given broad discretion to oversee the discovery process” (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]; see Lamagna v New York State Assn. for Help for Retarded Children, 222 AD2d 559, 559-560 [2d Dept 1995]; Cruzatti v St. Mary’s Hosp., 193 AD2d 579, 580 [2d Dept 1993]). It is axiomatic that “a party cannot be compelled to produce documents that do not exist” (Castillo v Henry Schein, Inc., id.). In such cases, however, the Court concludes that Claimant “is entitled to a detailed statement, made under oath, by an employee or officer with direct knowledge of the facts as to the past and present status of the sought documents” (Orner v Mount Sinai Hosp., 305 AD2d 307, 310 [1st Dept 2003]; Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000]; see Wilensky v JRB Mktg. & Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]). If the incident/accident report exists, Defendant is to produce same. If it does not exist, Defendant is to provide the affidavit to Claimant within twenty (20) days of the date of filing of this Decision and Order.

Defense counsel asserts that Claimant “wants to burden the defendant with obtaining an unnecessary affidavit” (Chu Affirmation in Opposition, ¶ 8). To the contrary, it is Claimant that inexplicably has been burdened in this instance by Defendant’s unwillingness to provide Claimant with the affidavit to which she is entitled in response to her rather straightforward discovery demand.

The Court notes that all discovery was to be completed and Claimant was to serve and file a Note of Issue and Certificate of Readiness on or before March 31, 2008. The Court hereby extends the date to complete discovery and Claimant to serve and file the Note of Issue and Certificate of Readiness to June 30, 2008.

April 4, 2008
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant’s motion to compel:

Papers Numbered

Notice of Motion, Attorney Affidavit
and Exhibits Attached 1

Affirmation in Opposition and Exhibits Attached 2

Filed Papers: Claim, Answer