|Claimant(s):||LEO RESCINITI and ANTHONY RESCINITI, by and through their Legal Guardian DIANNE RESCINITI|
|Claimant short name:||RESCINITI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||LEVENE, GOULDIN & THOMPSON, LLP
BY: Gary W. Farneti, Esq., of counsel
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN, ATTORNEY
BY: Bonnie Gail Levy, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 6, 2012|
|See also (multicaptioned case)|
Defendant State of New York (defendant) seeks a protective order pertaining to both document discovery and deposition testimony in this action pending in the Court of Claims (Claim No. 117949). Claimant(1) opposes the motion and cross-moves to vacate all prior discovery Orders issued in this action.
Claimant commenced this Court of Claims action on January 26, 2010 against defendant to recover for personal injuries received by Leo Resciniti and Anthony Resciniti when they were allegedly subjected to unreasonable and excessive force while residents at the Broome Developmental Center (BDC), a facility operated by the Office for People with Developmental Disabilities (OPWDD) (an agency of the State) for the care of disabled individuals, and located in Binghamton, Broome County. In this action, defendant initially answered and asserted various affirmative defenses. At approximately the same time, Claimant filed a summons and complaint in Supreme Court against the State and various individual defendants (the Supreme Court Action), and the State answered, again asserting various affirmative defenses on behalf of all the defendants. A history of the proceedings in both actions is relevant to the motions at hand.
Amendments to the pleadings have been made by the parties at various times throughout the history of the two litigations. In the Supreme Court Action, the State eventually recognized that a potential conflict of interest existed between the various defendants, and the individual defendants were provided with an opportunity to retain separate counsel.(2)
This Court was assigned this Court of Claims action at its commencement. The Court held an initial status conference to schedule a timetable for discovery and other proceedings during the course of the claim. Claimant's initial document discovery demand requested numerous documents including (among other things) copies of investigative reports, OMR-147 Reports, and communications regarding the incident(s) at issue, which were all investigated by OPWDD pursuant to Mental Hygiene Law § 29.29. Defendant repeatedly delayed its responses to the demands, and eventually counsel for defendant advised that OPWDD had concerns regarding confidentiality and privilege of some of the documents requested. The Court held several conferences to attempt to advance the production of documents.
Eventually, to expedite discovery, the parties jointly requested that formal motion practice be dispensed with, and that the Court conduct an in camera review of the requested material to determine whether it should be discoverable without the necessity of a formal written motion.(3) Upon issuance of an Order by the Court, a substantial number of documents were eventually delivered to the Court. The Court reviewed the materials, and provided direction (in the form of additional Orders) to the parties with regard to each numbered discovery demand.
Pursuant to the Court's instructions, defendant submitted a Privilege Log listing each document for which a privilege was claimed, the general subject matter, and asserting that the basis for the exemption for discovery of each document is the privilege contained in Education Law § 6527 (3), based on the fact that the documents pertain to investigations of incidents under Mental Hygiene Law § 29.29.(4) This privilege was clarified and upheld by the Court of Appeals in Katherine F. v State of New York (94 NY2d 200 ). This Court agreed that defendant was entitled to the privilege regarding these documents in its in camera review, and counsel for Claimant reluctantly agreed that the privilege prohibited disclosure of the documents for which the State claimed the privilege.
At that point in time, the same discovery issues were arising in the Supreme Court Action, as well as issues regarding the deposition of people involved in the investigation of the Mental Hygiene Law § 29.29 incidents. Counsel for defendant advised that she intended to move for a protective order in both this Court of Claims action and the Supreme Court Action regarding both the document disclosure and the deposition issues. In order to further judicial economy, the Supreme Court Action was transferred to this Court to be determined under its authority as an Acting Supreme Court Justice. The motions are essentially identical in both actions, although Claimant has brought a cross-motion in this Court of Claims action to vacate all prior discovery Orders issued by this Court. This Decision and Order will address only the motion and cross motion pending in this Court of Claims action.(5)
Unlike the motion for a protective order in the Supreme Court Action, this motion can readily be resolved. The Court has already examined the material for which a protective order is being sought (during the course of the in camera review), and has directed disclosure of those documents not subject to the Education Law § 6527 (3) privilege while excluding privileged material from disclosure.(6) The Orders pertaining to that disclosure were issued approximately one year prior to this Decision and Order, and were not challenged by the parties at the time. Further, the parties have not raised any issues in this motion which would affect those prior Orders in any way. Because the purpose of a protective order - which is to prevent disclosure abuses by denying, limiting, conditioning or regulating the use of any disclosure device (CPLR 3103 [a]; Siegel, NY Prac § 353, at 595-596 [5th ed]) - has been satisfied by the Orders previously issued, the Court finds that the portion of defendant's motion seeking a protective order pertaining to document discovery is unnecessary, and it is therefore denied. Claimant's cross motion, for the Court to vacate this Court's previous Orders pertaining to that document disclosure, is consequently denied as moot.
The Court would note, however, that counsel for defendant has been advised in the Supreme Court Action that if any documents exist which are responsive to Claimant's discovery demands, but for which the privilege has not yet been claimed in the Privilege Log,(7) all such documents and a revised Privilege Log must be timely submitted to the Court in accordance with the Decision and Order in that action (Resciniti v State of New York, Sup Ct, Broome County, Feb. 22, 2012, Schaewe, J., Index No. 2009-3025, supra). If the submission of any additional documents necessitates further review by the Court, it will be addressed at that time.
Defendant also moves for a protective order prohibiting Claimant from taking the deposition of those individuals (Mark Smacher, Terri Quain and Sharon Mortenson) who conducted the Mental Hygiene Law § 29.29 investigation, and quashing the deposition notices already issued for those individuals. Defendant contends that they are immune from being deposed pursuant to Mental Hygiene Law § 29.29, Education Law § 6527 (3), Public Health Law §§ 2805 (l) and (m), and 14 NYCRR 624.
Conversely, Claimant maintains that these individuals may be deposed regarding the actual facts they learned in the course of their investigation, and further submits that questioning of the investigators should also be allowed regarding any statements made by the parties to the litigation.
Although the Third Department has not ruled on this issue, the Second Department has, and those rulings are binding upon this Court (Mountain View Coach Lines v Storms, 102 AD2d 663 ). In the case of vanBergen v Long Beach Med. Ctr. (277 AD2d 374 ), the Second Department held that an investigator of a treatment complaint at a hospital was immune from submitting to a deposition. The Second Department further confirmed this ruling in the case of Chardavoyne v Cohen (56 AD3d 508 ). In light of these holdings, the Court must grant defendant's motion for an order prohibiting the depositions of the investigators named above, and hereby quashes Claimant's deposition notices pertaining to those investigators.
Defendant also requests a protective order prohibiting Claimant's counsel from inquiring of any persons who participated in the Mental Hygiene Law § 29.29 investigations regarding what they told the investigators, as well as any information discussed at meetings related to those investigations. Defendant concedes that questions may be posed regarding what the individual actually observed or knew with respect to the incident. Claimant also notes that there is no prohibition on asking questions regarding actual facts observed or known to such individuals (see Finnegan v State of New York, 179 Misc 2d 694, 702 ; see also Upjohn Co. v United States, 449 US 383 ).
The Court declines to issue a blanket ruling on this issue, as there is no possible way to anticipate and address every permutation of every question that could possibly be asked at these depositions. If the parties so choose, they may schedule their depositions at a time when the Court is available to rule on specific questions being asked, rather than speculative questions of an unknown nature. Defendant's request for a protective order pertaining to deposition questioning of individuals who were not investigators of the Mental Hygiene Law § 29.29 incidents is denied.
Defendant also requests that the Court issue an order that all parties are prohibited from disseminating any statements made by themselves or others pursuant to investigation of the incidents at issue. Counsel requests that this order apply even to information provided by a party to its attorney. Counsel has not elucidated on its basis for this unusual request, other than to cite Mental Hygiene Law § 29.29, Education Law § 6527 (3), Public Health Law §§ 2805-l and
2805-m, and 14 NYCRR 624.
This request is in no way justified, and is unsupported - in fact even contradicted - by the statutes. Education Law § 6527 (3) specifically allows discovery of statements made by an individual party during the course of an Mental Hygiene Law § 29.29 investigation, as counsel well knows. Public Health Law §§ 2805-l and 2805-m prohibit disclosure of records and documentation pertaining to incident reports at various types of facilities, but also specifically allow discovery (like Education Law § 6527 ) of statements made by individual parties to litigation during the course of meetings pertaining to those incidents. Mental Hygiene Law
§ 29.29 does not address confidentiality of any statements made during the course of investigations. Mental Hygiene Law § 33.25 (not cited by defendant) prohibits dissemination of the actual documents and reports provided to qualified individuals pursuant to Jonathan's Law,(8) but does not prohibit dissemination of the information contained in those reports.(9)
This request is absurd, and is completely contrary to specific provisions of law. Defendant's request for a protective order prohibiting dissemination of statements of any party to this action is denied.
Because defendant's motion papers in this Court of Claims action are identical to those in the Supreme Court Action, defendant has also requested herein that the Court grant a protective order prohibiting disclosure of certain documents demanded by counsel for Susan Winterstein, an individual defendant in the Supreme Court Action. However, because Ms. Winterstein is not a defendant in this action, the Court is denying this request as moot. That portion of the motion has been addressed in the Decision and Order pertaining to the motion in the Supreme Court Action (see Resciniti v State of New York, Sup Ct, Broome County, Feb. 22, 2012, Schaewe, J., Index No. 2009-3025, supra).
The Court hereby orders as follows:
1. Defendant's motion for a protective order prohibiting discovery of the documents for which the State has claimed a privilege pursuant to the Privilege Log is denied as having already been addressed pursuant to the Court's in camera review, and Claimant's cross motion to vacate the Court's prior Orders pertaining to discovery is denied as moot.
2. Defendant's motion for an order prohibiting the depositions of the investigators named above is granted, and the Court hereby quashes Claimant's deposition notices pertaining to those investigators;
3. Defendant's request for a protective order pertaining to deposition questioning of individuals who were not investigators of the Mental Hygiene Law § 29.29 incidents is denied;
4. Defendant's request for a protective order prohibiting dissemination of statements of parties to this action is denied; and
5. Defendant's motion to preclude discovery of the documents demanded by counsel for Ms. Winterstein, a defendant in the Supreme Court Action, is denied as moot.
March 6, 2012
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion and Claimant's cross motion:
1) Notice of Motion for a Protective Order filed on December 7, 2011; Affirmation of Bonnie Gail Levy, Assistant Attorney General (AAG), dated December 5, 2011, and attached exhibits.
2) Notice of Cross Motion filed on December 16, 2011; Affirmation of Gary W. Farneti, Esq., dated December 15, 2011.
3) Affidavit of Dianne Resciniti sworn to on December 27, 2011; Affirmation of Gary W. Farneti, Esq., dated December 28, 2011, and attached exhibits; Plaintiffs' Combined Legal Memorandum dated December 28, 2011.
4) Affirmation of Bonnie Gail Levy, AAG, dated January 12, 2012.
5) Plaintiffs' undated [Combined] Supplemental Legal Memorandum.
Filed papers: Claim filed on January 26, 2010; Verified Answer filed on February 26, 2010 and March 5, 2010; Amended Claim filed on May 26, 2010; Verified Answer to First Amended Claim filed on June 24, 2010; Second Amended Claim filed on July 23, 2010; Verified Answer to Second Amended Claim filed on August 25, 2010.
1. Claimant Dianne Resciniti (Claimant) commenced this action as guardian on behalf of her brothers Leo Resciniti and Anthony Resciniti, both of whom are legally disabled pursuant to the Mental Hygiene Law.
2. Simultaneously, responsibility for the defense of the State in both this Court of Claims action and the Supreme Court Action was transferred from the Regional Office of the Attorney General in Binghamton to the Regional Office of the Attorney General in Syracuse, in an attempt to erect a "chinese wall" to protect the interests of all defendants.
3. Claimant's counsel's complaint in this motion that the document disclosure process and the Orders by the Court did not take place through formal motion practice is inappropriate, as the Court undertook in camera review of the documents without a formal motion solely due to the express request and consent of counsel for both parties.
4. Incident reports are defined in Mental Hygiene Law § 29.29 as "reports of accidents and injuries affecting patient health and welfare."
5. The motion in the Supreme Court Action has been determined in a separate Decision and Order (Resciniti v State of New York, Sup Ct, Broome County, Feb. 22, 2012, Schaewe, J., Index No. 2009-3025).
6. Moreover, there are no individual defendants in this action to trigger the exception to the privilege set forth in Education Law § 6527 (3), which pertains to disclosure of statements of individual parties (there do not appear to be any statements made by Claimant which might fall within the exception). No further in camera review of the documents previously reviewed by the Court is necessary in this action (cf. Resciniti v State of New York, Sup Ct, Broome County, Feb. 22, 2012, Schaewe, J., Index No. 2009-3025, supra at 11-12).
7. The Court notes that the Privilege Log does not currently list the e-mails and other correspondence between State employees and counsel for various State agencies, which was already reviewed by the Court in this Court of Claims action. The Court strongly suggests to counsel that if any further documents exist for which a privilege is claimed, those documents must be included in the Privilege Log at this point, or the Court will deem the privilege waived in this action.
8. Jonathan's Law (Mental Hygiene Law §§ 33.23 and 33.25) was passed in 2007, and amended the Mental Hygiene Law to provide "qualified persons" (such as patients, their parents, or their legal guardians) with access to previously confidential records, in order to assist "families . . . to obtain . . . information about the treatment of their loved ones, and . . . [to] help enhance the safety of patients in . . . residential mental hygiene facilities" (Governor's Approval Mem, Bill Jacket, L 2007, ch 24, at 5).
9. As counsel for Claimant has pointed out, if dissemination of the information contained in those reports was prohibited, the actions a parent could take to protect his or her child upon receipt of the information would be extremely limited. For example, the parent could not call the police if their child had been assaulted, and could not convey information regarding an injury to a physician.