New York State Court of Claims

New York State Court of Claims

OLEMAN v. THE STATE OF NEW YORK, #2009-030-529, Claim No. 113119, Motion No. M-76491


Synopsis


Motion by inmate claimant to compel granted in part. Defendant directed to provide copy of medical records for the period from 2005 through 2006 including those from outside providers to the extent that the same are maintained in ambulatory health record, within ten (10) days of the filing of this order. Such copies are to be provided at States expense

Case Information

UID:
2009-030-529
Claimant(s):
ROBERT OLEMAN
Claimant short name:
OLEMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113119
Motion number(s):
M-76491
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ROBERT OLEMAN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
April 30, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion to compel


discovery:

1,2 Motion to Compel Production of Discovery Documents, Affidavit in Support of Motion to Compel Discovery by Robert Oleman, Claimant and attached exhibits

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[1] - 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.

April 30, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].
Civil Practice Law and Rules § 1101(a) allows a court to grant poor person status to a claimant upon motion supported by “. . . an affidavit setting forth the amount and sources of his . . . income and listing his . . . property with its value; that he . . . is unable to pay the costs, fees and expenses necessary to prosecute . . . the action . . . ” The motion is brought in “. . . the court in which an action is triable, or to which an appeal has been or will be taken.” [Id.]. The statute also requires that “. . . the county attorney in the county in which the action is triable . . .” be given notice of the application, in addition to parties to the action if an action has already been commenced. Civil Practice Law and Rules §1101(c).