3-5 Filed papers: Claim, Answer, Decision and Order Oleman v State of New
York, UID # 2007-030-526, Claim No. 113119, Motion Nos. M-72850, CM-72956
(Scuccimarra, J., May 14, 2007)
No Opposition Filed
In his claim Robert Oleman alleges that defendant’s agents at several
correctional facilities failed to provide him with adequate medical care and
proper facility placement between June 29, 2005 and October 25, 2006, causing
him to suffer injury. In its answer, in addition to general denials, defendant
asserts two affirmative defenses, including its first affirmative defense that
claimant failed to serve an adequate notice of intention to file a claim or a
claim within ninety (90) days of its accrual.
In prior motion practice, defendant’s cross-motion to dismiss the claim
was granted in part. [See Oleman v State of New York, UID #
2007-030-526, Claim No. 113119, Motion Nos. M-72850, CM-72956 (Scuccimarra, J.,
May 14, 2007)]. The only portion of the claim remaining to be heard is alleged
negligent failures to provide adequate medical care (including physical therapy)
within ninety (90) days before service of the claim, that is from September 19,
2006 to December 18, 2006. Any cause of action arising from the purported
negligence surrounding the alleged fall in July 2005 was dismissed.
In the present motion claimant seeks production of documents requested in his
Discovery Demands, apparently served on defendant with the motion, namely:
“Medical and psychiatric files from the files of New York State Health
Services, Five Points Correctional Facility, Office of Mental Health, and any
other all related medical providers who have consulted with or had
contact/referral to Robert Oleman . . . for the years 2005 through 2009.”
[Affidavit in Support of Motion to Compel Discovery, Exhibit A] . He has
appended his own authorization for such release. [Ibid. Exhibit B].
Since the negligent treatment alleged from September 19, 2006 allegedly arises
from injuries received in July 2005, there is at least arguable materiality and
relevance with regard to some of these documents, under the liberal discovery
precepts of Civil Practice Law and Rules §3101. Moreover, these are his own
medical records which, but for his status as an incarcerated inmate, he should
have for the asking upon payment of duplication fees.
By Order of this Court, claimant’s filing fee was reduced to $25.00
pursuant to Court of Claims Act §11-a (1), and Civil Practice Law and Rules
§1101(f) . (December 29, 2006, Sise, P.J.). Claimant has not generally been
granted poor person status
- indeed, he did
not make a motion for same - nor has he presented information here beyond that
already contained in the very general affidavit he filed with the claim in
connection with the filing fee reduction. Other than the filing fee, that has
already been reduced, there are no fees in the Court of Claims. The Court may
authorize payment of a particular item of expense upon a showing of sufficient
cause as the need arises.
As noted, although no opposition to the motion has been submitted, it is
nonetheless apparent that a request for production of records after the periods
alleged in claim is not material and relevant to its prosecution. There is
indication that claimant had attempted to obtain these documents through Freedom
of Information Law [FOIL] mechanisms [see generally Public Officers Law
Article 6], but it is unclear what efforts were made in that regard, or whether
any administrative denial was pursued through judicial review in an Article 78
proceeding in Supreme Court.
Accordingly, the defendant is directed to provide to claimant a copy of
medical records in the possession of the State’s agents, for the period
from 2005 through 2006, including those from outside providers to the extent
that the same are maintained in Mr. Oleman’s ambulatory health records,
within ten (10) days of the filing of this order. Such copies are to be
provided at the State’s expense.
The matter is scheduled for trial on May 21, 2009.