Pro se claimant's motion to compel State to respond to discovery demands is granted in part and denied in part. The State failed to object to any portion of claimant's demand in a timely fashion and may resist disclosure only where the request seeks privileged material or is palpably improper.
|Claimant short name:||CIFUENTES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||JAMIE CIFUENTES, Pro Se|
|Defendant's attorney:||HON. ERIC T SCHNEIDERMAN
New York State Attorney General
BY: Timothy J. Flynn, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 26, 2017|
|See also (multicaptioned case)|
Pro se claimant Jamie Cifuentes alleges in claim no. 127925 that he received inadequate medical care while he was incarcerated at Gowanda Correctional Facility (Gowanda). Claimant brings motion no. M-90099 to compel defendant to respond to his discovery demands. Defendant opposes the motion.
On July 28, 2016, claimant served defendant with a notice of demand for production of documents. A copy of claimant's demand is annexed to the opposing affidavit of Assistant Attorney General Timothy J. Flynn as Exhibit A. According to Mr. Flynn, page 4 of claimant's demand was missing from the demand as served. Pursuant to CPLR 3122 (a), defendant had twenty (20) days from service of the demand within which to respond or object to any portion of the demand. Defendant served its response on May 1, 2017. Having failed to object to any portion of claimant's demand in a timely manner, defendant may now resist disclosure only where the request seeks privileged material or is palpably improper (Briand Parenteau, Inc. v Dean Witter Reynolds, 267 AD2d 576 [3d Dept 1999]). A discovery demand is considered to be palpably improper "if it seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case" (Titleserv, Inc. v Zenobio, 210 AD2d 314, 315-316 [2d Dept 1994]), or where the demand is irrelevant, overboard and burdensome (Jefferson v State of New York, 60 AD3d 1215, [3d Dept 2009]).
With respect to demands 1 and 2, defendant generally objected to them, but then provided the documents requested. As such, no further response to demands 1 and 2 is required by defendant.
Presumably, demands numbered 3 through 10 subsections a, b, c and d were outlined on p. 4 of claimant's demand which was missing from the demand as served upon defendant. This Court may not order defendant to respond to a demand that it did not receive. Accordingly, claimant is to re-serve his demand with missing page 4. If claimant is not satisfied with defendant's response to the items demanded on p. 4 of his demand once re-served, he may at that time bring a subsequent motion to compel further responses. (1)
With respect to demands 11 and 14, defendant provided claimant with copies of the transport records for claimant's trip from Gowanda to Erie County Medical Center (ECMC) on April 12, 2016 and for claimant's trip from Gowanda to Wende Correctional Facility (Wende) on April 25, 2016 as requested. No further response is needed.
With respect to demands 15 and 16, claimant demanded copies of the transportation or trip logs for the dates: May 2, 2016; May 6, 2016; May 9, 2016; and May 10, 2016. In response, defendant relied on the response to demand no. 11 which indicated that attached as Exhibit C were "the transport records with respect to Claimant." Enclosed with defendant's response were the transport records for April 12, 2016 and for April 25, 2016 as requested by demands 11 and 14. Defendant's response is unclear. Accordingly, within thirty (30) days of filing of this decision and order, defendant is to provide a further response to demands 15 and 16 and advise claimant if transportation logs for the dates requested in these demands are available, and if so, provide copies to claimant.(2)
Claimant's demands numbered 10 (e-g), 11(a-e), 12, 12 (a-d), 13, 14 (a-e), 15( e-g), 16 (a-d), 17, and 18 call for the production of medical records. In order to respond, defendant needs authorizations signed by claimant. According to defendant, medical authorizations were sent to claimant in July 2016, with defendant's answer. Claimant states that executed authorizations were returned to defendant when he responded to defendant's discovery demands. Defendant states in his response to claimant's document demands 11 (a-d) that claimant's affidavit of service of his responses to defendant's demands indicated that medical authorizations were enclosed, but that no such authorizations were actually enclosed. Claimant enclosed copies of an authorization for DOCCS records with his reply affidavit. This authorization is now over a year old and no authorization for the release of ECMC records is enclosed. Upon receipt of this decision and order, defendant is to forward claimant new medical authorizations. Upon receipt by defendant of the executed authorizations from claimant, defendant is to provide copies of DOCCS and ECMC medical records as they relate to the care and treatment of claimant's thumb.
With respect to claimant's demand no. 17 (a), such demand is palpably improper as it calls for the names of medical providers at ECMC to be clearly spelled. When defendant receives claimant's authorizations, it will provide copies of ECMC records to claimant. No response beyond providing the medical records is required.
With respect to claimant's demands 12 (c), 14 (c), 14 (e), 15 (d), 17 (b) and 19, these demands are palpably improper insofar as they can be interpreted as requiring defendant to provide medical opinions, explanations and conclusions. Upon receipt of claimant's authorizations, defendant is to provide copies of claimant's medical records only. No further response beyond the medical records is required.
With respect to claimant's demand no. 20, such a demand is palpably improper. Demand 20 calls for the production of another inmate's disciplinary, COMPAS, criminal history and M.H.U. reports relative to this inmate's alleged history of assaultive behavior. Claimant has failed to place this inmate on notice of his motion to compel production of this inmate's confidential records. In addition, the demand is overly broad. Most importantly, this request calls for information which is in no way relevant to claimant's medical malpractice claim against the State. Defendant need not respond further to this demand.
Based on the foregoing, claimant's motion no. M-90099 is granted in part and denied in part.
September 26, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affidavit of Jamie Cifuentes sworn to March 13, 2017;
2. Opposing affidavit of Assistant Attorney General Timothy J. Flynn sworn to May 1, 2017, with annexed Exhibits A-C; and
3. Reply affidavit of Jamie Cifuentes sworn to May 26, 2017, with annexed Exhibits.
1. Claimant's enclosure of a copy of missing p. 4 of his document demand as an attachment to his reply affidavit does not constitute re-service of the demand.
2. This paragraph addresses only demands no. 15 and 16. It does not relate to demands 15 (a-g) or 16 (a-d) which will be addressed separately.