New York State Court of Claims

New York State Court of Claims
HARRIENGER v. STATE OF NEW YORK, # 2017-040-125, Claim No. 127859, Motion No. M-90267


Claimant's Motion to Compel a Response to Notice to Produce and for a Deposition granted.

Case information

UID: 2017-040-125
Claimant(s): DAVID A. HARRIENGER, as Administrator of the Estate of ROBERT D. HARRIENGER, II
Claimant short name: HARRIENGER
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127859
Motion number(s): M-90267
Cross-motion number(s):
Claimant's attorney: IZZO LAW OFFICE PLLC
By: Janet M. Izzo, Esq.
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Thomas Trace, Senior Attorney
Third-party defendant's attorney:
Signature date: September 18, 2017
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


For the reasons set forth below, Claimant's Motion to compel a response to his Notice to Produce and to compel Defendant to provide dates to conduct depositions is granted.

This Claim, which was filed in the office of the Clerk of the Court on April 28, 2016, asserts that Claimant was appointed the Administrator of the Estate of Robert D. Harrienger, II, on March 11, 2016, by the Surrogate's Court, St. Lawrence County (Claim, 6 & Ex. A attached thereto). It further asserts that, on May 12, 2014, the decedent was a patient at the St. Lawrence Psychiatric Center and was assaulted by another patient (id., 7, 8). It is alleged that, due to Defendant's failure to properly supervise the assailant, decedent sustained injuries that caused his death on May 13, 2014 (id., 5, 9 10, 12).

In her Affirmation in Support of the Motion, Claimant's counsel asserts that, on September 13, 2016, Claimant served a Demand for a Bill of Particulars, Combined Discovery Demands, Notice to Produce, and Notice to Take Deposition of any and all persons with knowledge (Affirmation of Janet M. Izzo, Esq. [hereinafter, "Izzo Affirmation"], 6 & Ex. C [copy of the Notice to Produce];& Ex. F [Notice to Take Deposition] attached thereto).

On October 18, 2016, Defendant served responses to Claimant's Demand for a Bill of Particulars, Combined Discovery Demands, and Notice to Produce (Izzo Affirmation, 7 & Ex. D attached thereto [copy of Defendant's Response to Notice to Produce]). Defendant also served a Supplemental Response to Notice to Produce, dated February 10, 2017 (Izzo Affirmation, 7 & Ex. E attached thereto).

Claimant objects to Defendant's responses to demands numbered 13-16 in Claimant's Notice to Produce, which assert that Claimant is not entitled to documents responsive to those demands (Izzo Affirmation, 8).

Claimant's demands at issue in the Notice to Produce are as follows:

13. Any and all information, written, or otherwise, of a nonmedical nature relating any prior assaults or similar violent behavior of Jose D. Miranda;

14. Photographs or video surveillance footage of the Trinity Building on May 12, 2014;

15. Any and all records regarding Jose Miranda's history of violent behavior and arrests provided to Defendant at the time of Mr. Miranda's admission to St. Lawrence Psychiatric Center; and

16. The number of times and length of admission for each admission to a New York State owned and operated psychiatric institution by Jose Miranda.

(Ex. C attached to Izzo Affirmation)

Defendant objected and did not provide any information in response to Claimant's above- referenced demands on the basis that the information is privileged under various provisions of the Mental Hygiene Law, CPLR 4504, Public Officers Law 87(2) and Article 6-A "Personal Privacy Protection Law," Education Law 6527(3) (Quality Assurance Privilege) and the Health Insurance Portability Act of 1996 (hereinafter, "HIPA"). Also, in response to Demands 13, 15, and 16, Defendant advised that the Demand should be served on the assailant, to be given the opportunity to respond (Ex. D attached to Izzo Affirmation). In its Supplemental Response to Notice to Produce, Defendant amended its response to Demand 14 by stating:

14) In response to the demand for photographs or video surveillance footage of the Trinity Building on May 12, 2014: The Attorney General continues to object to the demand for these documents on the grounds previously raised. In addition, no video footage or photographs exist.

Claimant now moves to compel Defendant to provide meaningful responses to these four Demands. The State raises the same objections as it did in its Response to Notice to Produce (Trace Affirmation, 5, 7).

The Court will address Demands 13, 15, and 16 together. Defendant is statutorily required to report to the Department of Health certain "adverse events," including, as is relevant here, "patients' deaths or impairments of bodily functions in circumstances other than those related to the natural course of illness, disease or proper treatment" (Public Health Law 2805-l[2][a]). However, Education Law 6527(3) contains a "quality assurance privilege [that] shields from disclosure certain records and reports generated by a hospital in performing either a medical malpractice or quality assurance review" (Bluth v Albany Med. Ctr., 132 AD3d 1131, 1131 [3d Dept 2015]; see Daly v Brunswick Nursing Home, Inc., 95 AD3d 1262, 1263 [2d Dept 2012]) [internal quotation marks omitted]). The statute confers broad confidentiality upon records relating to "quality assurance" and the "prevention of medical, dental and podiatric malpractice" (Public Health Law 2805-j [1]) and investigations undertaken "[p]rior to granting or renewing professional privileges" (Public Health Law 2805-k [1]), as well as those relating to "adverse events" as required by Public Health Law 2805-l (see Education Law 6527[3]); Public Health Law 2805-m [1]). "Notably, such records are expressly exempt from disclosure under CPLR article 31" (Bluth v Albany Med. Ctr., supra at 1132; see Education Law 6527 [3]; Public Health Law 2805-m [1]; Katherine F. v State of New York, 94 NY2d 200, 204 [1999]; Logue v Velez, 92 NY2d 13, 17 [1988]).

As the party seeking to invoke the privilege, Defendant bears the burden of establishing that a review procedure was in place and that the requested documents were prepared in accordance with the relevant statutes (see Bluth v Albany Med. Ctr., supra at 1132; Kneisel v QPH, Inc., 124 AD3d 729, 730 [2d Dept 2015]).

Here, Defendant has submitted only the affirmation of its counsel, who has submitted only conclusory statements that the documents requested were prepared in connection with quality assurance and are within the scope of the asserted privilege. The Court finds that Defendant failed to set forth sufficient details to enable the Court to conclude that the documents are privileged.

Additionally, in Brier v State of New York (95 AD2d 788 [2d Dept 1983], the court set forth guidelines for examining hospital records:

In the process of redacting the hospital record the court shall exclude therefrom (1) all reports and references concerning physical and psychological examinations, the results thereof, prognosis, diagnosis and treatment, (2) any entry where a doctor, nurse or other medical personnel refers to a prior assault or act of violence between the patient and another as a starting point for that entry, or such entry that is made as the basis for their interviewing and/or treating the patient and (3) any entry by medical personnel concerning treatment of the patient for the specific incident which was the basis of his referral to them. The court shall include in the redacted copy of the hospital record to be furnished to the claimants (1) all reports and references made, regardless of author, concerning any assaultive or violent behavior between the patient and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action, such as a transfer within the institution taken by the institution personnel, the police department, the courts, etc., where such action was predicated upon the aforesaid behavior, and (2) the number of times the patient was confined to defendant's institution and the length of each stay thereat.

Based upon the information provided, the Court finds and concludes that information concerning medical diagnosis and treatment is privileged. If the Court were to conduct an in- camera review of the documents, the Court would follow the guideline set forth by the Court in Brier (supra). Here, however, Claimant's requests follow those guidelines, and the Court concludes there is no need to conduct an in-camera review of the documents. The Motion to compel a response to Demands 13, 15, and 16 is granted, and Defendant is directed to provide the requested information or an affidavit, by an employee or officer with direct knowledge of the facts as to the past and present status of the documents sought, within thirty (30) days of the date of filing of this Decision and Order (Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000]; see Orner v Mount Sinai Hosp., 305 AD2d 307, 310 [1st Dept 2003]; Wilensky v JRB Mktg. & Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]).

Defense counsel, in paragraph 6 of his Affirmation in Opposition to the Motion, asserts that Demands 13 and 15 are seeking information regarding the alleged assailant only for the year 2014. The Court has reviewed the Demands and does not see any such limitation set forth in the Demands and Defendant's responses shall not be so limited.

Turning to Demand 14, in its Supplemental Response to Notice to Produce, Defendant states there is no video surveillance footage or photographs of the Trinity Building on May 12, 2014. "It is well settled that a trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]; see Lamagna v New York State Assn. for Help for Retarded Children, 222 AD2d 559, 559-560 [2d Dept 1995]; Cruzatti v St. Mary's Hosp., 193 AD2d 579, 580 [2d Dept 1993]). It is axiomatic that "a party cannot be compelled to produce documents that do not exist" (Castillo v Henry Schein, Inc., id.). In such cases, however, the Court concludes that Claimant "is entitled to a detailed statement, made under oath, by an employee or officer with direct knowledge of the facts as to the past and present status of the sought documents" (Longo v Armor El. Co., supra; see Orner v Mount Sinai Hosp., supra; Wilensky v JRB Mktg. & Opinion Research, supra). If photographs and video recordings do exist, Defendant is to produce same. If they do not exist, Defendant is to provide such affidavit to Claimant within thirty (30) days of the date of filing of this Decision and Order. The Motion to compel a response to Demand 14 is granted to the extent set forth above.

Defendant is further directed to provide Claimant with dates to conduct depositions of any and all of its employees who have knowledge, responded to, aided in and/or reported the incident that is the subject of this Claim with such appearances to be made within sixty (60) days of the filing of this Decision and Order.

Based upon the foregoing, Claimant's Motion to compel is granted.

September 18, 2017

Albany, New York


Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's Motion to compel:

Papers Numbered

Notice of Motion, Affidavit in Support,

Exhibits Attached & Memorandum of Law 1

Affirmation in Opposition & Exhibit Attached 2

Filed Papers: Claim, Answer