New York State Court of Claims

New York State Court of Claims
NASCA v. THE STATE OF NEW YORK, # 2010-033-392, Claim No. 116263, Motion Nos. M-77772, M-77773


Case information

UID: 2010-033-392
Claimant short name: NASCA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116263
Motion number(s): M-77772, M-77773
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Duffy & Duffy
By: Brian C. Lockhart, Esq.
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
Third-party defendant's attorney:
Signature date: June 22, 2010
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim for alleged injuries sustained by Chase Nasca, An Infant, By His Father and Natural Guardian, Dean Nasca (hereinafter "claimant") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter "defendant"). The claim arose on February 19, 2008 and continued through February 26, 2008.

The infant claimant presented to the emergency room of SUNY Stony Brook Hospital on February 19, 2008, and was admitted. During the course of the infant claimant's admission, it was determined a testicle had to be removed. The claimant alleges several failures in care and diagnosis against defendant and individual doctors and residents.

Claimant seeks to take a deposition of Doctors Annamma Daniel and Maribeth Chitkara as non-party witnesses in this action. To that end, claimant prepared subpoenas for the doctors, which this Court So Ordered, and claimant served upon the doctors. In addition to this action, claimant has an action against the doctors in Supreme Court.

The attorneys for the doctors now move this Court for an order quashing the non-party subpoenas(1) . In support of its argument, counsel makes two arguments. First, counsel argues that claimant is trying to improperly avoid a stay in the Supreme Court. The remaining argument is that the subpoenas are invalid.

As to the first argument, the attorneys argue discovery is ongoing in the Supreme Court and when the depositions take place they will be held to satisfy both actions. Counsel argue a motion has been made concerning the discovery in Supreme Court causing the depositions to be stayed.

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 call the doctors as non-party witnesses. The doctors' attempt to circumvent the NYS Constitution and prioritize the Court of Claims behind Supreme Court is rejected.

Counsel further argue the subpoenas are defective because they violate HIPAA. Movants' 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. The subpoena asks for original correspondence and materials. These materials could include the medical records of claimant. The subpoenas are sufficient as to the testimony of the doctors. However, the Court finds the subpoenas must satisfy requirements of a subpoena duces tecum and ad testificandum to be sufficient.

Claimant is directed to resubmit the subpoenas with either a valid HIPAA authorization or only for the testimony of the doctors.

Based on the foregoing, the motions to quash the subpoenas are denied.

June 22, 2010

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. The following papers have been read and considered on movants' motions: Notice of Motion (to Quash Subpoena to Take Deposition of Dr. Annamma Daniel) dated January 29, 2010 and filed February 2, 2010; Affirmation in Support of B. Michael Wright, Esq. with annexed Exhibits A-D dated January 29, 2010; Notice of Motion (to Quash Subpoena to Take Deposition of Dr. Maribeth Chitkara) dated January 29, 2010 and filed February 2, 2010; Affirmation in Support of B. Michael Wright, Esq. with annexed Exhibits A-I dated January 29, 2010 and filed February 2, 2010; Affirmation in Opposition to Movants' Motion to Quash and for a Protective Order of Brian C. Lockhart, Esq. with annexed Exhibits 1-5 dated March 3, 2010 and filed March 8, 2010; Reply Affirmation of B. Michael Wright, Esq. with annexed Exhibits A-C dated March 9, 2010 and filed March 11, 2010.