New York State Court of Claims

New York State Court of Claims

BRABHAM v. THE STATE OF NEW YORK, #2008-041-010, Claim No. 109431, Motion No. M-74717


Synopsis


Claimant’s motion to compel disclosure of medical records and to change venue is denied where defendant has agreed to provide the requested records, if available, and where the convenience of only two of more than twenty potential material witnesses has been shown.


Case Information

UID:
2008-041-010
Claimant(s):
WAYNE BRABHAM
Claimant short name:
BRABHAM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109431
Motion number(s):
M-74717
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
WAYNE BRABHAMPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Kent B. Sprotbery, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 28, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves to compel defendant to produce claimant’s medical records from 1987 through 1991 and for a change of venue of the trial of the claim from Clinton Correctional Facility to Sullivan Correctional Facility based upon the convenience of material witnesses. The claim alleges negligence and malpractice by the defendant over a period of years in its medical treatment of claimant during his incarceration at various correctional facilities operated by defendant.

Claimant’s application to compel production of the requested medical records is denied. By claimant’s own admission defendant has not refused to provide the records but instead informed claimant that the “[m]edical [u]nit staff are attempting to locate grievant’s 1987-1991 medical records and will advise him of the status of that search within mandated time frames.”

In order to prevail on a change of venue motion made pursuant to CPLR 510 (3), the proponent must “supply the names, addresses and occupations of the witnesses whose convenience [proponent] claims will be affected, indicate that the prospective witnesses have been contacted and are willing to testify on [his] behalf and specify the substance of each witness’s testimony, which must be necessary and material” (Andros v Roderick, 162 AD2d 813, 814 [3d Dept 1990]; see Heiss v Moose, 16 AD3d 765 [3d Dept 2005]).

Claimant has failed to meet his burden.

The claim alleges that between “the years of 1987-2004, claimant was seen by at a minimum by 7 nurses, about 10 different doctors, and about 3 physician assistants. Out of which claimant had surgery performed on the same area of his scalp by three different people ranging from P.A.’s to Doctors.”

The claim further alleges that the alleged malpractice took place at nine (9) different correctional facilities.

Claimant has provided information regarding only two (2) of more than twenty (20) potential witnesses set forth in the claim. These two witnesses are corrections officers who did not treat claimant and who are subject to subpoena for the purpose of compelling their clearly limited testimony.

The claimant’s motion is denied.


April 28, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Motion to Compel Discovery and for Change of Venue, filed March 17, 2008;
  2. Affidavit of Wayne Brabham, sworn to on March 12, 2008, with annexed exhibits;
  3. Affirmation in Opposition of Kent B. Sprotbery, affirmed on March 31, 2008, with annexed exhibit.