New York State Court of Claims

New York State Court of Claims

MORENE v. THE STATE OF NEW YORK, #2008-044-558, Claim No. 112328, Motion No. M-74675


Synopsis


Claimant’s motion to compel disclosure denied.

Case Information

UID:
2008-044-558
Claimant(s):
ANTHONY MORENE
Claimant short name:
MORENE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112328
Motion number(s):
M-74675
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
ANTHONY MORENE, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim alleging the Department of Correctional Services (DOCS) failed to dispense pain medication to him after it was prescribed by a physician. Defendant State of New York (defendant) answered and asserted various affirmative defenses. Claimant now moves to compel “Defendant to Produc[e] documents Pursuant to rule 37.” Defendant opposes the motion.

Claimant alleges that even though pain medication had been prescribed for him, DOCS personnel failed to administer it to him from March 22, 2006 through March 25, 2006. Claimant apparently served a demand for documents requesting his ambulatory health records for March 22, 2006 through March 25, 2006 and October 12, 2006 through October 16, 2006, as well as entries from the Nurses’ Log Book. Claimant argues that “their [sic] is no way [that] defendant can’t have any records of [claimant’s] treatment plan,” and requests that the Court compel defendant to supply the documents.

The parties have failed to file their discovery demands and responses with the Clerk of the Court as is required by the Rules of the Court of Claims [22 NYCRR] § 206.5 (c).[1] However, claimant has reiterated his demands within this motion to compel, and defendant has attached a copy of its responses to its answering papers. The Court will therefore review whether defendant’s responses were appropriate.

In response to claimant’s demand for his Ambulatory Health Records for March 22, 2006 through March 25, 2006, and October 12, 2006 through October 16, 2006, defendant provided that portion of claimant’s records which contained entries from January 19, 2006 through April 24, 2006, but refused to provide any further entries. The Court finds defendant’s response to be appropriate. CPLR 3101 provides for the disclosure of all items “material and necessary in the prosecution or defense of an action.” Because the claim alleges that claimant was denied medication between March 22, 2006 through March 25, 2006 and contains no factual allegations concerning any later dates, claimant’s Ambulatory Health Records from October 12, 2006 through October 16, 2006 are not relevant to this action.

With respect to claimant’s request for the Nurses’ Log Book, defendant initially responded to claimant’s demand by advising that the Attorney General’s Office “does not have any copies of the Nurses [sic] Log Book,” and instructed claimant to obtain the documents directly from the correctional facility (Affirmation in Opposition of Carol A. Cocchiola, Assistant Attorney General [AAG], Exhibit A). In response to this motion, defendant again asserts that claimant may obtain copies of those documents directly from Elmira Correctional Facility pursuant to DOCS Directive No. 2010 – in other words, by using the Freedom of Information Law (FOIL). However, AAG Cocchiola has nonetheless agreed to request copies of the Nurses’ Log Book that correspond to the relevant dates, and if such records exist, to provide them to claimant (Affirmation in Opposition of Carol A. Cocchiola, AAG, dated April 7, 2008, ¶ 8).[2] This response is also sufficient.

AAG Cocchiola affirms that claimant did not request copies of any treatment plans, and therefore none were provided to him. Because claimant has made no discovery demand concerning his treatment plan or plans, to the extent that this motion seeks to compel production of those documents, it is denied as premature (see CPLR 3124).

Lastly, claimant’s request for counsel fees, costs, and expenses “[p]ursuant to rule 37” is also denied. As defendant correctly notes, it is apparent that claimant is referring to the Federal Rules of Civil Procedure rule 37 which is clearly not applicable to this action.[3] Moreover, claimant has failed to establish that defendant wilfully failed to comply with his discovery demands, and sanctions are therefore inappropriate (CPLR 3126).

Claimant’s motion to compel disclosure is denied in its entirety.


June 26, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion filed on March 12, 2008; Affidavit of Anthony Morene sworn to on March 7, 2008.

2) Affirmation in Opposition of Carol A. Cocchiola, AAG, dated April 7, 2008, and attached Exhibit A through C.


Filed papers: Claim filed on May 11, 2006; Verified Answer filed on June 21, 2006.


[1]. Claimant previously submitted a letter dated August 21, 2006 to the Court, but addressed to Assistant Attorney General Carol A. Cocchiola, in which he demanded his Ambulatory Health Records for March 22, 2006
through March 25, 2006 only. That letter was treated as having been misdirected to the Court, and was returned to claimant. Based upon claimant’s discussion of his Ambulatory Health Records for October 12, 2006 through October 16, 2006, it is apparent that he subsequently served the Attorney General’s Office with a different discovery demand.

[2]. Although it is not necessary for resolution of this motion, the Court notes that the mere fact that a claimant may obtain requested information by making a FOIL request “does not foreclose a CPLR 3120 demand once an action has been commenced” (Barnes v State of New York, Ct Cl, Apr. 7, 2008, Moriarty III, J., Claim No. 100753, Motion No. M-73884 [UID # 2008-037-012]), as the provisions mandating disclosure in both the FOIL and the CPLR are independent (see Koehl v State of New York, Ct Cl, Dec. 17, 2007, Collins, J., Claim Nos. 113876, 113877, Motion Nos. M-73968, M-73969 [UID # 2007-015-257]; cf. Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75 [1984]).

For the same reason – and notwithstanding that an inmate may obtain a copy of his or her medical record pursuant to Policy Number 4.10 of DOCS Health Services Manual – an inmate claimant is also entitled to obtain copies of his or her medical records pursuant to CPLR article 31.
[3]. Federal Rules of Civil Procedure rule 37 (a) (5) (A) provides in pertinent part that “[i]f the motion [for discovery] is granted . . . the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”