Defendant's motion seeking leave to reargue a prior motion relating to disclosure was granted, and the original order compelling disclosure of certain documents was revised.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||PAULINO RODRIGUEZ, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 22, 2009|
|See also (multicaptioned case)|
Defendant has brought this motion seeking leave to reargue a prior motion (Motion No. M-70419) which was brought by the claimant to compel disclosure.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibit 1,2
Claimant's "Answer" in Opposition 3
In a Decision and Order dated July 14, 2009, this Court determined claimant's motion for an order compelling disclosure of certain documents which had previously been submitted to the Court for an in camera review. In that Decision and Order, this Court directed that two Incident Reports pertaining to an investigation of the incident which forms the basis of this claim be disclosed, together with copies of claimant's inpatient medical record. Defendant now seeks to reargue that motion, contending that the two Incident Reports are privileged and fully exempt from disclosure. Pursuant to CPLR § 2221(d), a request by a party for leave to reargue a prior determination of the Court must be based upon "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion."
In this particular matter, defendant contends that this Court overlooked the fact that the Incident Reports in question are prohibited from disclosure pursuant to Education Law § 6527(3).
Section 6527(3) specifically provides, in relevant part, that
"Neither the proceedings ... nor any report required by the department of health pursuant to section twenty-eight hundred five-l of the public health law described herein, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law. No person in attendance at a meeting when ... an incident reporting function described herein was performed, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall be required to testify as to what transpired thereat."
The Court notes that in 1986, this section of the education law had been amended to specifically extend this statutory privilege to reports prepared in connection with incident investigations in psychiatric hospitals which are required by Mental Hygiene Law § 29.29 (L. 1986, ch. 427, § 2).
For whatever reason, this Court was not aware that the defendant was relying upon this statutory privilege when it determined the original motion (M-70419).
The clear and unambiguous language set forth in Education Law § 6527(3) protects from disclosure those incident reports which are reportable under Mental Hygiene Law § 29.29 (Smith v State of New York, 181 AD2d 227; Brathwaite v State of New York, 208 AD2d 231; Finnegan v State of New York, 179 Misc 2d 694).
Accordingly, this Court finds that the two incident reports sought by claimant, and previously directed to be disclosed in this Court's Decision and Order to Motion No. M-70419, are privileged under Education Law § 6527(3) and are not subject to disclosure.
Accordingly, it is
ORDERED, that Motion No. M-77048, by which defendant seeks leave to reargue Motion No. M-70419, is hereby GRANTED; and it is further
ORDERED, that upon such reargument, the two incident reports, previously directed to be disclosed, are determined to be privileged under Education Law § 6527(3) and therefore need not be disclosed by the defendant.
December 22, 2009
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims