|Claimant(s):||DAVID SZMANIA and
|Claimant short name:||SZMANIA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption was previously amended sua sponte to reflect the only proper Defendant is the State of New York in Decision and Order filed December 31, 2007.|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Lipsitz Green Scime Cambria LLP
By: Michele A. Braun, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 12, 2009|
|Official citation:||82 AD3d 1688 (2011)|
|Appellate results:||Affirmed as Modified|
|See also (multicaptioned case)||2009-037-026|
The following have been read and considered with respect to Claimants' motion (M-
75568) and Defendant's cross-motion (CM-75791) to compel discovery:
1. Claimants' notice of motion(2) and supporting affirmation of Michele A. Smith,
Esq.(3) dated September 15, 2008, with annexed Exhibits A-R;
2. Defendant's cross-motion and affidavit of Assistant Attorney General William D.
Lonergan in opposition to Claimants' motion and in support of Defendant's cross-motion sworn to October 27, 2008, with annexed Exhibits A-B;
3. Opposing affirmation of Michele A. Braun, Esq. in opposition to Defendant's
cross-motion and in reply and in support of Claimants' motion dated November 5, 2008, with annexed Exhibits A-B.
Filed papers for Claim No. 111595: Notice of Claim(4) filed November 7, 2005; Answer
filed January 17, 2006.
Filed papers for Claim No. 111596: Notice of Claim(5) filed November 7, 2005; Answer
filed January 17, 2006.
Claimant David Szmania(6) seeks money damages for personal injuries he sustained on May 18, 2005 when he was allegedly attacked near his home by a resident of the West Seneca Developmental Center, a facility operated by the New York State Office of Mental Retardation and Developmental Disabilities in West Seneca, New York. Mr. Szmania contends that Defendant was negligent in its failure to properly restrain and supervise the assailant and to maintain adequate security for his protection.
After several conferences (22 NYCRR § 206.8[b]), counsel for the parties were unable to resolve their differences related to discovery and Claimants' attorney now moves for an order compelling the production of documents and certain witnesses employed by the State in order that they may be deposed. The State opposes the motion and cross-moves for an order pursuant to CPLR 3124 compelling the production of updated medical authorizations for the minor children who are Claimants in claim no. 111595.
Claimants seek an order compelling Defendant to produce documents requested in Claimants' notice to produce documents and things dated January 14, 2008 (Claimants' Exhibit K),(7) with clarification dated April 11, 2008 (Claimants' Exhibit O). Each request will be discussed seriatim.
Claimants' Notice to Produce Documents and Things dated January 14, 2008.
"1. The West Seneca Developmental Center File . . ."
In its response dated February 6, 2008 (Claimants' Exhibit M), Defendant objects to this demand on the grounds that the information sought is confidential and the demand is overly broad and unduly burdensome. Defendant further objects to this demand because no relevant time period is stated. Claimants argue that a criminal defendant who relies upon his medical and psychiatric history to defend himself in a criminal trial waives his right to confidentiality of his medical and psychiatric history in a subsequent civil action even if the defendant is not a party to the civil action. In support, Claimants rely, in part, on Webdale v North Gen. Hosp., 7 Misc 3d 947 (2005), aff'd 24 AD3d 153 (2005). In Webdale, Kendra Webdale was pushed in front of an oncoming subway train by a patient with a history of mental illness. Ms. Webdale's estate sued various institutions that had treated the patient/assailant and sought to compel the institutions to release the patient/assailant's medical and psychiatric records. The court found that the patient/assailant had relied upon his medical and psychiatric history to defend himself in the criminal trial, had opened up his history to the public and waived his right to confidentiality pursuant to CPLR § 4504, and thus, ordered the release of his medical and psychiatric records. In so finding, the Webdale court cited CPLR § 4504 and Mental Hygiene Law § 33.13 (c) (1).
CPLR § 4504 provides:
"(a) Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity."
Mental Hygiene Law § 33.13 (c) states:
"(c) Such information about patients or clients reported to the offices, including the identification of patients or clients, clinical records or clinical information tending to identify patients or clients, and records and information concerning persons under consideration for proceedings pursuant to article ten of this chapter, at office facilities shall not be a public record and shall not be released by the offices or its facilities to any person or agency outside of the offices except as follows:
1. pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality, provided, however, that nothing herein shall be construed to affect existing rights of employees in disciplinary proceedings."
Claimants argue that the interests of justice outweigh the need for confidentiality in the present case because the patient/assailant who allegedly stabbed the Claimant waived his right to confidentiality by relying "upon his medical and/or psychiatric history to defend himself in a criminal trial . . . " (see ¶ 23 of Attorney Braun, nee Smith's September 15, 2008 affirmation). The problem with this argument is that the patient/assailant herein was apparently never tried. Rather, he was committed after a "stipulated hearing" (see Exhibit R attached to Attorney Braun's September 15, 2008 affirmation). Claimant makes no showing as to what records or testimony were used during this hearing, how they were used or if they were made public. Without such information, the Court cannot conclude that the patient/assailant herein has waived the confidentiality of his medical and psychiatric history or that the interests of justice significantly outweigh the need for confidentiality. Accordingly, Claimants' motion to compel the production of the West Seneca Developmental Center file for the patient/assailant herein is denied.
"2. Any and all Investigation Documents concerning the incident" of May 18, 2005.
A similar discovery demand was the subject of prior motion practice. By this Court's decision and order (see Szmania v State of New York, Ct Cl, November 1, 2007, Moriarty III, J., Claim Nos. 111595 and 111596, Motion No. M-73723, Cross-Motion No. CM-73862, UID # 2007-037-048), Defendant was ordered to produce to the Court for an in camera review documents relating to the investigation of the May 18, 2005 incident. Defendant complied with this order and the Court reviewed the documents produced by the Defendant. This review was the subject of a supplemental order by the Court (see Szmania v State of New York, Ct Cl, January 22, 2009, Claim Nos. 111595 and 111596, Motion No. M-73723, Cross-Motion No. CM-73862). Documents determined by the Court to be subject to disclosure were copied, redacted in part and hand delivered to Claimants' counsel at a conference conducted by the Court. Because Defendant has complied with the Court's order with respect to this demand, no further response from Defendant is necessary.
"3. All Written Policy Manuals and/or Provisions concerning a resident's ability to leave the West Seneca Developmental facility in effect May 18, 2005" (see Claimants' January 14, 2008 Notice to Produce [Claimants' Exhibit K]). Clarified to: "Please forward a copy of the Index from the Policy Manual for the West Seneca Developmental facility in effect May 18, 2005, or forward all policies, procedures and protocols pertaining to a resident's ability to leave West Seneca Developmental grounds in effect May 18, 2005, . . ." (see April 11, 2008 letter from Claimants' counsel clarifying demands [Claimants' Exhibit O]).
Initially, Defendant responded that Claimants' demand no. 3 was unclear (Claimants' Exhibit M), prompting Claimants to clarify their demand (Claimants' Exhibit O). Defendant responded to the clarification by identifying two areas of the policy manual which could be responsive, but admitting that the policy items identified were effective after the May 18, 2005 incident date. Defendant agreed to attempt to ascertain if the superceded items that were in effect on the date of the incident are still in existence (see ¶ ¶ 13, 14 of Attorney Lonergan's October 27, 2008 affidavit). No further response to this demand has been forthcoming, in spite of the fact that Defendant has had more than enough time to respond. Accordingly, Defendant is to advise Claimants' counsel within 45 days of filing of this decision and order if the policy manual in effect on May 18, 2005 is still in existence, and if it is available, to provide a copy of its index to Claimants' counsel.
"4. All West Seneca Developmental Center Logs, Sign-In Sheets or 'Passes' granting
permission to leave the facility to [the patient/assailant]" (see Claimants' January 14, 2008 Notice to Produce [Claimants' Exhibit K]). Clarified to add: "for the time period of April 18, 2005 - May 18, 2005." (see April 11, 2008 letter from Claimants' counsel clarifying demands [Claimants' Exhibit O]).
Initially, Defendant objected to this demand on the grounds that it was overly broad and burdensome and did not state a relevant time frame (see Defendant's Response to Claimants' Notice to Produce dated February 6, 2008 [Claimants' Exhibit M]). By letter dated May 15, 2008, Defendant's counsel advised that there were no documents responsive to this demand (see Claimants' Exhibit Q). No further response from Defendant is required.
"5. Any and all Photographs or Drawings of the exits that existed at the West Seneca
Developmental Center on May 18, 2005" (see Claimants' January 14, 2008 Notice to Produce [Claimants' Exhibit K]). Clarified by adding: "specifically a blueprint drawing of the grounds showing all buildings, parking lots and driveways as well as a blueprint drawing of the building wherein a resident, [the patient/assailant], was residing on May 18, 2005 as well as any . . ." (see April 11, 2008 letter from Claimants' counsel clarifying demands [Claimants' Exhibit O]).
After initially objecting to this demand (see Claimants' Exhibit M), Defendant produced a floor plan (see Claimants' Exhibit Q) and an "Index of Buildings" (see Defendant's Exhibit A). Claimants have no way of knowing, however, from Defendant's responses if there are any other documents responsive to this demand. Accordingly, Defendant is to advise Claimants' counsel within 45 days of the filing of this decision and order if there are any other documents responding to this demand and, if so, to produce them to Claimants' counsel.
Claimants' Notice for Examination Before Trial of Dennis Karby, Douglas C. Busse and Ellen Amrhen.
Initially Claimants requested that Defendant produce for examination before trial a representative with knowledge of the facts placed in issue (see Claimants' Exhibit G). Because Defendant was unclear as to the individual or individuals the Claimants sought to depose (see Claimants' Exhibit I), Claimants attempted to clarify their request (see the January 11, 2008 letter of Claimants' counsel annexed as part of Claimants' Exhibit K) and subsequently identified Dennis Karby, Douglas C. Busse and Ellen Amrhen as prospective deponents (see Claimants' Exhibit L). Defendant has resisted the scheduling of depositions because Defendant apparently has priority and because Defendant believed that Claimants had not fully complied with this Court's prior discovery decision and order as set forth in Assistant Attorney General Lonergan's letter of February 21, 2008 (see Exhibit A annexed to the opposing affirmation of Attorney Braun). Based on Attorney Braun's opposing affirmation, it appears that this Court's prior discovery decision and order has been complied with. While the Court will not order depositions, it encourages both parties to put aside their differences and attempt to complete at least the first round of depositions within the next three months, mindful of this Court's prior and present decisions and orders regarding confidentiality.
Defendant's Cross-Motion to Compel Discovery (Claim Nos. 111595 and 111596).
By its cross-motion, Defendant is seeking responses to the February 21, 2008 and March 14, 2008 letters of Assistant Attorney General Lonergan. Defendant fails to annex to its cross-motion papers a copy of the February 21, 2008 letter. As noted above, however, Claimants have complied with this Court's prior decision and order which was the subject of the February 21, 2008 letter. By the March 14, 2008 letter (Defendant's Exhibit B), Defendant is seeking updated medical authorizations for the infant Szmania children, Jennifer and Michael. On July 13, 2009, however, Claimants filed a motion (M-76960) for permission to withdraw claim no. 111595 brought on behalf of the infant children. Defendant's demand for updated medical authorizations will be rendered moot if Claimants' pending motion to withdraw is granted. The Court will deny Defendant's motion to compel updated medical authorizations without prejudice. Thus, in the event Claimants' subsequent motion to withdraw claim no. 111595 is denied, Defendant may resubmit its cross-motion to compel discovery at that time.
Based on the foregoing, it is hereby
ORDERED, that Claimants' motion (M-75568) to compel further responses to Claimants' notice to produce documents and things dated January 14, 2008 is granted in part and denied in part. Within forty-five (45) days of filing of this decision and order Defendant shall supply further responses to Claimants' demands numbered 3 and 5, but need not provide any further responses to demands numbered 1, 2 and 4 of Claimants' January 14, 2008 demand; and it is further
ORDERED, that Claimants' motion to compel examinations before trial is denied; and it is further
ORDERED, that Defendant's cross-motion (CM-75791) to compel updated medical authorizations for the infant Claimants in claim no. 111595 is denied without prejudice.
August 12, 2009
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims
2. Initially, two separate Claims were filed: Claim No. 111595 on behalf of infant Claimants Jennifer and Michael Szmania and Claim No. 111596 on behalf of David and Deborah Szmania. On Claimants' notice of motion, only Claim No. 111596 is referenced. Claim No. 111595 brought on behalf of the infant Claimants is, however, discussed by Claimants' counsel in her initial affirmation and a copy of the "notice of claim" filed as Claim No. 111595 is annexed to Claimants' original motion papers as Exhibit C. Moreover, Claim No. 111595 is the subject of Defendant's cross-motion to compel discovery.
3. Since these papers were submitted, Attorney Smith has married and changed her name to Michele A. Braun.
4. This is a misnomer. Actions in the Court of Claims are commenced by the filing and service of a claim, not a "notice of claim."
5. This is a misnomer. Actions in the Court of Claims are commenced by the filing and service of a claim, not a "notice of claim."
6. The claim of Deborah Szmania is derivative in nature and the claim of Jennifer and Michael Szmania is for psychological injuries resulting from witnessing the alleged attack upon David Szmania. Unless otherwise indicated or required by context, the term "Claimant" shall refer to David Szmania only.
7. Claimants' counsel refers in the motion papers to a notice for production dated January 11, 2008. While counsel's cover letter is dated January 11, 2008, the notice for production discussed herein is dated January 14, 2008.