New York State Court of Claims

New York State Court of Claims

EDWARDS v. THE STATE OF NEW YORK, #2009-032-144, Claim No. 116050, Motion No. M-76748


Synopsis



Case Information

UID:
2009-032-144
Claimant(s):
MALIK EDWARDS
1 1.The Court sua sponte amends the caption to reflect the only properly named defendant.
Claimant short name:
EDWARDS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116050
Motion number(s):
M-76748
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Malik Edwards, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: James E. Shoemaker, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 8, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves this Court for an order compelling Defendant to comply with discovery, for “reasonable attorney’s fees and cost and expenses incurred in this proceeding,” and for sanctions.

Motion to Compel
Claimant alleges that Defendant failed to properly respond to his discovery demands. Specifically, he alleges that he requested his medical records from the beginning of 2007 until 2009, which pertain to tests performed at Southport Correctional Facility regarding HIV screening, cancer screening and hepatitis C screening, and that Defendant failed to produce the same. Claimant alleges that he is aware that the facility in which he is housed would allow a review of his medical records, but that it presents a hardship for him because not only would he be allowed just a limited amount of time to review the records, but that because of his handcuffs and waist chain, he would not be able to take notes. He further alleges that he is unable to pay the fee requested for photocopies of his records.

In opposition to Claimant’s motion, Defendant attaches a copy of Claimant’s Request for Production of Documents, dated March 16, 2009, and Defendant’s Response to Claimant’s Demand for Documents, dated April 13, 2009. In said Response, Defendant indicated that Claimant’s medical records from the beginning of 2007 through year 2009 were in excess of 300 pages, and that Claimant could request review time at the medical records department of the facility at which he was housed to view the same, which could thereafter be reproduced at a cost of fifty cents per page. In addition, Defendant noted his objection to Claimant’s request for the personnel files of various medical staff on the basis that no records regarding the treatment of Claimant would be contained in such files.

The Court finds that Defendant’s responses to Claimant’s demands were entirely appropriate. Claimant has the right to inspect his own medical records (see 7 NYCRR § 5.24[a]; Public Health Law § 17) and may request a copy of any portion of his record to which he is entitled, upon payment of a reasonable fee not to exceed seventy-five cents per page (see 7 NYCRR § 5.36; Public Health Law § 17. The fact that Claimant may avow to be impoverished because he is incarcerated entitles him to no greater rights than a non-prisoner pro se litigant who does not have the funds to carry out all the normal steps of litigation, including discovery (see Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]).

Accordingly, the portion of Claimant’s motion which seeks to compel Defendant to respond to discovery demands and for sanctions is denied.
Motion for Attorney’s Fees, Costs and Expenses
Pursuant to Court of Claims Act § 27, counsel or attorney’s fees shall not be allowed by the court to any party. In the event and to the extent Claimant’s request for "reasonable attorney’s fees and cost and expenses incurred in this proceeding" is a request for permission to proceed as a poor person and for the assignment of counsel, it is denied.

To begin, CPLR § 1101 (c) requires that notice of an application for permission to proceed as a poor person and for the assignment of counsel must be given to the county attorney in the county in which the action is triable. The papers submitted by Claimant do not demonstrate that his motion was served upon the county attorney. Accordingly, Claimant’s application is defective and must be denied (see Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016-1017 [Ct Cl 1979]; Pettus v State of New York, UID #2006-028-579, Claim No. 109717, Motion No. M-71735, Sise, P.J. [July 27, 2006]).

Even if Claimant had properly served the motion on all who are entitled to notice, he has not asserted facts that would warrant poor person status and the assignment of counsel.

CPLR § 1101 provides the mechanism for applying poor person status, and CPLR § 1102 allows the Court to assign an attorney to a poor person. The assignment of counsel in private matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).

A review of the claim in this case reveals that Claimant is seeking money damages for alleged medical malpractice. It does not demonstrate that Claimant is facing a loss of liberty or grievous forfeiture, which would warrant the assignment of counsel (see Morgenthau v Garcia, 148 Misc 2d 900 [Sup Ct, NY County 1990]).

By Order of Hon. Richard E. Sise, Presiding Judge, filed on November 24, 2008, the Court granted Claimant’s request for a reduction of the filing fee. Inasmuch as the filing fee has been addressed, the continued prosecution of this matter does not require the claimant to pay any additional Court costs or fees. The Court notes that Claimant is not even required to outlay funds to mail legal papers. The correctional facility provides limited free postage on a weekly basis and if the claimant exceeds his weekly allotment and has no funds available in his prison account, the correctional facility will advance funds for postage on legal mail (7 NYCRR § 721.3).

Based upon the foregoing, Claimant’s motion for an order an order compelling Defendant to comply with discovery and for “reasonable attorney’s fees and cost and expenses incurred in this proceeding” is denied in its entirety.



September 8, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:

1. Notice of Motion for Order Compelling Discovery, dated May 20, 2009, along with Supporting Affidavit of Malik Edwards, sworn to May 27, 2009;

2. Affirmation in Opposition of James E. Shoemaker, AAG, dated June 11, 2009.

Papers Filed: Claim, filed November 5, 2008; Order of Hon. Richard E. Sise, Presiding Judge, filed November 24, 2008; Verified Answer, filed December 8, 2008.