New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2009-030-533, Claim No. 103848, Motion Nos. M-76346, M-76504, CM-76532


Synopsis


Motion by defendant to dismiss claim based upon purported inadequacy of supplemental bill of particulars denied, no showing of wilful or contumacious behavior. Motion by claimant to compel production of names and business addresses of State employees as directed in prior court order granted, and defendant directed to produce noticed employees for deposition; and last known address of former employee.

Case Information

UID:
2009-030-533
Claimant(s):
SHIRLEY JACKSON as Administratrix of the Estate of CARL JACKSON and SHIRLEY JACKSON, Individually
Claimant short name:
JACKSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103848
Motion number(s):
M-76346, M-76504
Cross-motion number(s):
CM-76532
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
HARRIET A. GILLIAM, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DANIEL CHU, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 18, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant’s motion to dismiss [M-76346], claimants’ motion to compel discovery [M-76504] and defendant’s cross-motion for a protective order [CM-76532]:
1,2 Notice of Motion [M-76346]; Affirmation in Support by Daniel Chu, Assistant Attorney General, attorney for Defendant and attached exhibits

  1. Affirmation in Opposition [M-76346] by Harriet A. Gilliam, attorney for Claimants, and
attached exhibits

4,5 Notice of Motion [M-76504]; Affirmation in Support by Harriet A. Gilliam, attorney for Claimants and attached exhibits

6,7 Notice of Cross-Motion [CM-76532]; Reply Affirmation in Further Support of Defendant’s Motion to Dismiss, in Opposition to Claimants’ Motion to Compel, and in Support of Cross-Motion for a Protective Order by Daniel Chu, Assistant Attorney General

  1. Affirmation in Opposition (to Cross-Motion) [CM-76532] by Harriet A. Gilliam, attorney for Claimants
  1. Reply Affirmation in Further Support of Cross-Motion for a Protective Order [CM-76532] by Daniel Chu, Assistant Attorney General
10-14 Filed papers: Claim, Answer, Amended Answer; Decision and Order Jackson v State of New York, UID # 2008-030-566, Claim No. 103848, Motion Nos. M-75480, M-75485 (Scuccimarra, J., October 20, 2008); Claimants’ Further Supplemental Bill of Particulars[1]
BACKGROUND
This is a claim alleging that defendant’s agents, through the failure to provide adequate and timely care, negligently caused the conscious pain and suffering and wrongful death of Carl Jackson. Mr. Jackson was treated at the defendant’s hospital from February 10, 1999 through February 23, 1999 the date of his death. Mr. Jackson had been suffering from end stage renal disease, and was evaluated for and underwent a kidney transplant at Stony Brook University Hospital. In a related action brought in Suffolk County Supreme Court, the lawsuit against the named physicians was dismissed on application for summary judgment on March 13, 2007.

In prior motion practice in the Court of Claims, defendant was permitted to amend its answer to include a collateral estoppel defense, and moved for dismissal of the claim in its entirety. That motion to dismiss was granted to the extent that the only remaining portion of the claim seeks relief related to the acts or omissions by any other agents, servants and/or employees of Stony Brook Hospital alleged by claimants in their bill of particulars to be the proximate cause of decedent’s death. [Jackson v State of New York, UID # 2007-039-041, Claim No. 103848, M-73197 (Ferreira, J., September 5, 2007)].

The causes of action remaining in the claim itself stem from alleged acts or omissions of defendant’s “agents, servants and/or employees” in proximately causing the death of Carl Jackson. Such individuals would include nurses, nurses aides, or other hospital staff - essentially any individuals whose status might render the State liable - except for the seven physicians named in the companion lawsuit.

This court issued its discovery decision after motion practice concerning contested issues on October 20, 2008, in a Decision and Order filed November 21, 2008. [See Jackson v State of New York, UID # 2008-030-566, Claim No. 103848, Motion Nos. M-75480, M-75485 (Scuccimarra, J., October 20, 2008)].
Defendant’s Motion to Dismiss
Defendant moves to dismiss the claim based upon claimants’ purported failure to provide court ordered discovery. The defendant maintains that the further supplemental bill of particulars filed January 12, 2009 does not satisfy the court’s directives in its earlier October 20, 2008 Decision and Order filed November 21, 2008 and repeats the statements made in the original bill served in 2001. [See Affirmation in Support by Daniel Chu, Assistant Attorney General, ¶10, Exhibits E and F]. Counsel for defendant further writes that now that the defendant has provided the identification of the nurses and nurses aides treating decedent prior to his death, as well as the “attending medical chart,” claimants should be compelled to assert what specific acts or omissions of these individuals constituted departures from accepted standards of medical care. [Ibid. ¶11]. Because claimants have listed 18 people “out of close to 150 individuals” who had some contact with the decedent, and include “identical allegations from a bill of particulars that was served almost eight years ago . . . the defendant would be hampered in speaking to these witnesses to fully prepare them for their deposition since it cannot determine what actions or omissions they apparently committed that proximately caused the death of Mr. Jackson.” [Ibid. ¶13]. Defendant decries this further supplemental bill of particulars as a “willful disregard” of this Court’s Order warranting dismissal of the claim. Civil Practice Law and Rules §3126.

To the contrary, claimants have clearly tried to narrow down who had contact with Mr. Jackson during his treatment at defendant’s hospital, in keeping with the narrowing of the claim to the remaining allegations of negligence with regard to selected employees or former employees - the nurses, nurses aides and other hospital staff and personnel - who assuredly defendant would have no trouble “preparing for deposition” by the simple expedient of speaking to them. Indeed, claimants have noticed for deposition only seven (7) of the individuals listed in the further supplemental bill of particulars. [Affirmation in Opposition [M-76346] by Harriet A. Gilliam, ¶14].

Moreover, where the information available is clearly within the greater control of the defendant, it is not the proverbial fishing expedition to seek the limited depositions sought, and to provide what information is now available to furnish a bill of particulars, and further amend it, if necessary, to avoid surprise at trial. The further amended supplemental bill served herein suffices. See generally Civil Practice Law and Rules §3042, 3043,

The motion to dismiss the claim is denied, as there is no showing that there was any wilful or contumacious behavior on the part of claimants sufficient to invoke the drastic remedy of dismissal of the claim. Civil Practice Law and Rules §3126.
Claimants’ Motion to Compel
Granted. Defendant is directed to provide the names and business addresses of the employees - including housekeeping staff - who attended to the decedent, or an affidavit by a person with knowledge as to how or why such information is not available[2], as directed earlier by this Court, within fifteen (15) days of the filing date of this Decision and Order. If any of these individuals are no longer employees, defendant should so indicate within the same time frame, and provide the last known addresses of same.

Defendant is also directed to produce those employees already noticed for deposition, namely Deborah Coleman, RN; Jennifer Cain, RN; Mona Strimas, RN; Nancy Petrone, RN; and Shannon Savoca, RN, within sixty (60) days of the filing date of this decision, unless the parties agree otherwise, in a writing copied to the court, but in no case shall the time frame extend beyond ninety (90) days of the filing of this decision.

The last known address for Doreen Warsaw, RN, a former employee, has apparently already been provided. It is incumbent upon claimants to proceed accordingly. See Civil Practice Law and Rules §3106 (a); Schneider v Melmarkets Inc., 289 AD2d 470, 471 (2d Dept 2001); Zappolo v Putnam Hosp. Center, 117 AD2d 597 (2d Dept 1986); DiMare v New York City Transit Authority, 81 AD2d 574, 575 (2d Dept 1981); see also Kryzhanovskaya v City of New York, 31 AD3d 717, 718 (2d Dept 2006).

Since Anthony Ippolito, MD[3] is apparently no longer an employee, defendant is directed to provide his last known address to claimants in writing with a copy to the court within fifteen (15) days of the filing of this Decision. See generally Public Officers Law Article 6-A; see Kryzhanovskaya v City of New York, supra.
Defendant’s Motion for a Protective Order
Denied. Depositions of those already noticed State employees is directed to go forward within the time frames set forth above. Defendant is not obliged to produce former employees for deposition as they are no longer in defendant’s control. Schneider v Melmarkets Inc., supra; Zappolo v Putnam Hosp. Center, supra; DiMare v New York City Transit Authority, supra.
Discovery, Certificate of Readiness and Filing of a Note of Issue
The time within which to file a Note of Issue and Certificate of Readiness will expire on June 5, 2009. The time within which to file a Note of Issue and Certificate of Readiness is hereby extended to November 30, 2009. No further extensions shall be made unless preceded by written request providing the specific reasons why such extension is requested, to be addressed in a compliance conference before the Court. The Court is not interested in hearing whose fault it is regarding any failure to communicate. The events underlying this claim occurred ten (10) years ago. No further motion practice concerning discovery is expected or warranted at this juncture, because the Court must assume that two officers of the court are capable of pursuing a civilized discovery process in accordance with the liberal policies afforded to litigation practice in the State of New York.

Based on the foregoing, defendant’s motion to dismiss [M-76346] is denied, as is defendant’s cross-motion for a protective order [CM- 76532]; and claimants’ motion to compel disclosure [M-76504] is granted as provided.

May 18, 2009
White Plains, New York

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




[1]. Counsel are reminded that all papers that are required to be served upon a party should be filed in the Office of the Chief Clerk of the Court of Claims. 22 NYCRR §206.5 (c). No bill of particulars was filed by claimants in the Office of the Chief Clerk as required, although a bill of particulars was apparently served on defendant in August 2001, and a supplemental bill of particulars was served on or about April 7, 2008. It also appears that the amended claim was served but not filed.
[2]. In this regard, counsel for defendant’s indication that he has “been informed by Risk Management at Stony Brook University Hospital that employee time records are kept for only 6 years. The events at issue in this case took place 10 years ago. Therefore the records sought no longer exist”[see Reply Affirmation in Further Support of Motion to Dismiss, etc., by Daniel Chu, Assistant Attorney General, ¶11], is disturbing, given the earlier direction as to providing an affidavit by a person with knowledge if defendant’s position is that requested records or information does not exist, as well as potential assertions of spoliation of evidence.
[3]. As noted by claimants, this physician is not one of those exempted by the other litigation.