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).
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, ¶
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
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.
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,
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.
. 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
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,
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 ).