New York State Court of Claims

New York State Court of Claims
WERSAN v. THE STATE OF NEW YORK, # 2010-033-371, Claim No. 113053, Motion No. M-77302


Case information

UID: 2010-033-371
Claimant short name: WERSAN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113053
Motion number(s): M-77302
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Freedhand & Freedhand, LLP
By: Martin Freedhand, Esq.
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
Third-party defendant's attorney:
Signature date: April 16, 2010
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim for the alleged injuries of Patricia Wersan (hereinafter "decedent")(1) caused by the defendant, the State of New York (hereinafter "defendant") due to its alleged medical malpractice. The claim is brought on behalf of the Estate of Patricia Wersan by her Executor, John Wersan, Sr. (hereinafter "claimant"), and by John Wersan, Sr., Individually. The claim arose between December 2, 2005 and December 21, 2005. Claimant has also commenced an action in Supreme Court against Alison McLarty, M.D. Dr. McLarty was claimant's treating physician at defendant's hospital.

Claimant obtained a court ordered subpoena for the testimony of Dr. McLarty. The subpoena also directed Dr. McLarty to provide "records, notes, reports or memorandum" in the doctor's possession relative to treatment of decedent. Dr. McLarty moves this Court to quash its subpoena. Movant argues the doctor's deposition has been ordered in the Supreme Court action to be held jointly with this Court's deposition but only after claimant has complied with certain discovery requests. In addition, movant argues the subpoena is defective because in addition to the testimony of Dr. McLarty, it also calls for the production of documents and, the subpoena is not accompanied by a HIPAA form. Lastly, movant argues the fee provided with the subpoena was insufficient.

The establishment of the court system is found in Article VI of the New York State Constitution. Article VI, 7 states that the Supreme Court shall "have general original jurisdiction in law and equity and the appellate jurisdiction herein provided."

The Supreme Court in this State is a court of general original jurisdiction in law and equity (see N. Y. Const., art. VI, 7, subd. a.) and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings, irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party.

(Kaminsky v Kahn, 23 AD2d 231, 236).

Separately, the Court of Claims is established by NY Const Art. VI, 9, which states, in relevant part that "[t]he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Court of Claims is limited to awarding money damages against the State of New York (Matter of Silverman v Comptroller of The State of New York, 40 AD2d 225).

The Supreme Court and the Court of Claims are equal courts of original jurisdiction. Neither court can control the other, even when dealing with the same incident.

In this action, claimant is entitled to the deposition of Dr. McLarty. This Court has no power to correct improper discovery in the Supreme Court action. Movant's argument that the Supreme Court ordered the depositions to be held jointly and after certain discovery in that action carries no weight in this Court, just as this Court's orders would carry no weight in a Supreme Court action. Dr. McLarty is a non-party witness in this action and must answer the subpoena.

Movant's argument concerning the lack of HIPAA authorization attached to the subpoena is valid as to the written materials which the doctor has been asked to produce. Claimant admits the subpoena is not CPLR 3122 compliant as to the records. The subpoena is sufficient as to the testimony of the doctor. However, the Court finds the subpoena must satisfy requirements of a subpoena duces tecum and ad testificandum to be sufficient.

Based on the foregoing, the motion to quash the subpoena is granted without prejudice. The Court will issue another subpoena for Dr. McLarty upon a sufficient subpoena produced by claimant.

April 16, 2010

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. Decedent was alive at the time the case was brought and has since passed away.