Claimant's motion to compel disclosure granted and medical and incident records to be submitted by defendant for in camera inspection by the Court.
|Claimant(s):||ANTHONY STEVEN AMBERGER, SR.|
|Claimant short name:||AMBERGER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||GOLDSTEIN & METZGER, LLP
By: Mark J. Metzger, Esq.
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 1, 2010|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on claimant's motion to compel disclosure and for a Court ordered deposition:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Attorney's Affirmation in Opposition and Exhibit....................................................2
Attorney's Reply Affirmation.....................................................................................3
Claim No. 114464 alleges that on October 7, 2006, while claimant was a patient at Mid-Hudson Forensic Psychiatric Center (Mid-Hudson), he was assaulted by another patient, Cory Caldwell. The claim further alleges that Caldwell had a history of assaulting other patients and that claimant was assaulted due to defendant's negligent supervision.
Claimant seeks an Order pursuant to CPLR 3106(c) to conduct the deposition of Caldwell, "a person confined under legal process" at Mid-Hudson. Claimant also seeks an Order compelling the production of Caldwell's medical and incident records maintained by defendant, to the extent they contain information of Caldwell's history of violence and assaultive behavior.
Claimant's application is GRANTED as follows. Defendant is directed to produce to the Court, by February 1, 2011, for an in camera inspection, a copy of Caldwell's medical and any incident records maintained by Mid-Hudson for the time period of one year prior to and including October 7, 2006, limited to any non-medical data which indicates Caldwell's propensity for violence, but does not refer to diagnosis, prognosis or treatment (see Thompson v Pibly Residential Programs, Inc., 69 AD3d 453; J.Z. v South Oaks Hosp., 67 AD3d 645 [patient's records of prior assaultive behavior and violence are not privileged and may be used to establish notice of violent propensities]).
Items to be produced for an in camera review shall be paginated and submitted in triplicate. One copy shall be marked by defendant with any proposed redactions. Upon an in camera review by the Court, an Order will be issued directing defendant to provide claimant with anything which the Court determines to be material and necessary to the prosecution of this claim. If the aforenoted items are not received by the Court prior to February 1, 2011 in accordance with all the terms of this Order, then the matter shall be set down for a Court appearance by both parties on February 4, 2011 at 3:00 p.m. so that defendant may hand deliver all documents in compliance with this Order to claimant and the Court.
Claimant's application for a Court ordered deposition of Caldwell is DENIED. On the papers submitted, there is insufficient information to establish whether Caldwell's condition would enable him to provide material and relevant information at a deposition that would not be cumulative to information obtained from Caldwell's records which defendant has been directed to produce pursuant to this Order. Claimant also has failed to establish that the information sought by compelled deposition is not otherwise obtainable by the use of other discovery devices or from other sources.
Thus, claimant's motion is GRANTED in part, as to the records to be produced for an in camera review by the Court, and claimant's motion is DENIED in part, as to the deposition of Caldwell.
November 1, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims